UNITED STATES
SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
AMENDMENT
NO. 3 TO
SCHEDULE 13E-3
RULE 13e-3 TRANSACTION
STATEMENT
(Under Section 13(e)
of the Securities Exchange Act of 1934)
HOMEINNS HOTEL
GROUP
(Name of the Issuer)
Homeinns Hotel
Group
BTG Hotels (Group)
Co., Ltd.
BTG Hotels Group
(HONGKONG) Holdings Co., Limited
BTG Hotels Group
(CAYMAN) Holding Co., Ltd
Beijing Tourism
Group Co., Ltd.
Poly Victory Investments
Limited
Ctrip Travel Information
Technology (Shanghai) Co., Ltd.
Neil Nanpeng Shen
Smart Master International
Limited
David Jian Sun
Peace Unity Investments
Limited
Jason Xiangxin
Zong
James Jianzhang
Liang
Wise Kingdom Group
Limited
(Names of Persons
Filing Statement)
Ordinary Shares,
par value $0.005 per share
American Depositary
Shares, each representing two Ordinary Shares
(Title of Class
of Securities)
43742E1021
(CUSIP Number)
Homeinns
Hotel Group
No. 124 Caobao Road
Xuhui District
Shanghai 200235
People’s Republic of China
Attention: Cathy Xiangrong Li
(+86 21) 3337-3333 |
|
BTG Hotels
(Group) Co., Ltd.
BTG Hotels Group (HONGKONG) Holdings
Co., Limited
BTG Hotels Group (CAYMAN) Holding
Co., Ltd
51 Fuxingmen Avenue
Xicheng District, Beijing 100031
People’s Republic of China
Attention: Rungang Zhang
(+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
Attention: Yi Liu
(+86-10) 8562-9988 |
|
Ctrip
Travel Information Technology (Shanghai) Co., Ltd.
c/o
968 Jin Zhong Road
Shanghai
200335
People’s
Republic of China
Attention:
Xiaofan Wang
(+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
c/o
No. 124 Caobao Road
Xuhui
District, Shanghai 200235
People’s
Republic of China
(+86-21)
3337-3333 |
|
|
|
Jason
Xiangxin Zong
c/o
No. 124 Caobao Road
Xuhui
District, Shanghai 200235
People’s
Republic of China
(+86-21)
3337-3333 |
|
James
Jianzhang Liang
Wise
Kingdom Group Limited
c/o
968 Jin Zhong Road
Shanghai
200335
People’s
Republic of China
(+86-21)
3406-4880 |
(Name, Address
and Telephone Number of Person Authorized to Receive Notices and Communications)
With copies
to:
Kathryn
King Sudol, Esq.
Simpson Thacher & Bartlett
35th Floor, ICBC Tower
3 Garden Road, Central
Hong Kong
(+852) 2514-7600 |
|
Ke Geng,
Esq.
Nima Amini, Esq.
O'Melveny & Myers LLP
Yin Tai Centre, Office Tower, 37th
Floor
No. 2 Jianguomenwai Ave.
Chao Yang District
Beijing
People’s Republic of China
(+86 10) 6563-4261 |
|
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
|
This statement is filed in connection with (check the appropriate
box):
a |
¨ |
The filing of solicitation materials or an information
statement subject to Regulation 14A, Regulation 14-C or Rule 13e-3(c) under the Securities Exchange Act of 1934. |
|
|
|
b |
¨ |
The filing of a registration statement under the Securities Act
of 1933. |
|
|
|
c |
¨ |
A tender offer |
|
|
|
d |
x |
None of the above |
Check the following box if the soliciting materials or information
statement referred to in checking box (a) are preliminary copies: ¨
Check the following box if the filing is a final amendment
reporting the results of the transaction: ¨
Calculation of
Filing Fee
Transactional
Valuation* |
|
Amount
of Filing Fee** |
US$1,192,784,029.07 |
|
US$120,113.35*** |
| * | Calculated solely
for the purpose of determining the filing fee in accordance with Rule 0-11(b)(1) under
the Securities Exchange Act of 1934, as amended. The filing fee is calculated based on
the sum of (a) the aggregate cash payment for the proposed per share cash payment
of US$17.90 for 63,932,689 issued and outstanding ordinary shares of the issuer (including
shares represented by the American depositary shares) subject to the transaction, plus
(b) the product of 1,381,558 ordinary shares issuable under all outstanding and
unexercised options multiplied by US$4.6408 per share (which is the difference between
US$17.90 per share merger consideration and the weighted average exercise price of US$13.2592
per share), plus (c) the product of 2,345,104 ordinary shares underlying the restricted
share units multiplied by US$17.90 per share ((a), (b) and (c) together, the
“Transaction Valuation”). |
| ** | The amount
of the filing fee, calculated in accordance with Exchange Act Rule 0-11(b)(1) and the
Securities and Exchange Commission Fee Rate Advisory #1 for Fiscal Year 2016, issued
on August 27, 2015, was calculated by multiplying the Transaction Valuation by 0.00010070. |
| *** | The
filing fee of US$120,104.17 has been previously paid.
|
| ¨ | Check box
if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing
with which the offsetting of the fee was previously paid. Identify the previous filing
by registration statement number, or the Form or Schedule and the date of its filing. |
Amount Previously Paid: |
Filing Party: |
|
|
Form or Registration No.: |
Date Filed: |
| 1 | This
CUSIP applies to the American Depositary Shares, evidenced by American Depositary Receipts,
each representing two ordinary shares. |
TABLE OF CONTENTS
INTRODUCTION
This Amendment No. 3 to the Rule
13e-3 transaction statement on Schedule 13E-3, together with the exhibits hereto (this “Transaction Statement”),
is being filed with the Securities and Exchange Commission (the “SEC”) pursuant to Section 13(e) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), jointly by the following persons (each, a
“Filing Person,” and collectively, the “Filing Persons”):
| (a) | Homeinns Hotel Group, an exempted company with limited
liability incorporated under the laws of the Cayman Islands (the “Company”),
the issuer of the ordinary shares, par value US$0.005 per share (each, a “Share”),
including the Shares represented by the American depositary shares (“ADSs”),
each representing two Shares, that is subject to the transaction pursuant to Rule 13e-3
under the Exchange Act; |
| (b) | BTG Hotels (Group) Co., Ltd., a joint stock company
established and existing under the laws of the People’s Republic of China (the
“PRC”) (“BTG Hotels” or “Parent”); |
| (c) | BTG Hotels Group (HONGKONG) Holdings Co., Limited, a
company incorporated under the laws of the Hong Kong Special Administrative Region and
a wholly owned subsidiary of BTG Hotels (“Holdco”); |
| (d) | 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”); |
| (e) | Beijing Tourism Group Co., Ltd., a company organized
and existing under the laws of the PRC (“BTG”); |
| (f) | Poly Victory Investments Limited, a company organized
and existing under the laws of the British Virgin Islands (“Poly Victory”); |
| (g) | Ctrip Travel Information Technology (Shanghai) Co.,
Ltd., a limited liability company established and existing under the laws of the PRC
(“Ctrip Shanghai”); |
| (h) | Neil Nanpeng Shen, co-founder, co-chairman of the board
of directors, and an independent director of the Company (“Mr. Shen”); |
| (i) | Smart Master International Limited, a company organized
and existing under the laws of the British Virgin Islands owned and controlled by Mr.
Shen and his spouse (“Smart Master”); |
| (j) | Mr. David Jian Sun, the chief executive officer
and a director of the Company (“Mr. Sun”); |
| (k) | Peace Unity Investments Limited, a company organized
and existing under the laws of the British Virgin Islands indirectly owned and controlled
by Mr. Sun (“Peace Unity”); |
| (l) | Jason Xiangxin Zong, the chief operating officer of the
Company (“Mr. Zong”); |
| (m) | James Jianzhang Liang, co-founder and independent director
of the Company (“Mr. Liang”); and |
| (n) | Wise Kingdom Group Limited, a company organized and
existing under the laws of the British Virgin Islands wholly owned and controlled by
Chung Lau (“Ms. Lau”), the spouse of Mr. Liang, (“Wise Kingdom”,
together with Poly Victory, Ctrip Shanghai, Mr. Shen, Smart Master, Mr. Sun, Peace Unity,
and Mr. Zong, the “Rollover Shareholders”). |
On December 6, 2015, the Company entered
into an agreement and plan of merger (the “Merger Agreement”) with Holdco, Merger Sub, and solely for the purposes
of certain sections of the Merger Agreement, BTG Hotels, which included a plan of merger required to be filed with the Registrar
of Companies of the Cayman Islands, substantially in the form attached as Annex A to the Merger Agreement (the “Plan of
Merger”). The Merger Agreement provides for the merger of Merger Sub with and into the Company (the “Merger”),
with the Company continuing as the surviving company after the Merger. At the effective time of the Merger (the “Effective
Time”), the Company will be owned by Holdco and the Rollover Shareholders.
If the Merger is completed, each Share
issued and outstanding immediately prior to the Effective Time, other than the Rollover Shares, the Excluded Shares, and the Dissenting
Shares, each as described below, will be cancelled and cease to exist and will be converted into and for the right to receive
US$17.90 per Share and each ADS issued and outstanding immediately prior to the Effective Time, other than ADSs representing Rollover
Shares or Excluded Shares, will represent the right to surrender the ADS in exchange for US$35.80 per ADS (less cancellation fees
of US$0.05 per ADS pursuant to the terms of the Deposit Agreement, dated as of October 31, 2006, among the Company, The Bank of
New York Mellon, in its capacity as the ADS depositary (the “ADS Depositary”), and the holders and beneficial owners
of ADSs issued thereunder (the “Deposit Agreement”)), in each case, in cash, without interest and net of any applicable
withholding taxes. If the Merger is completed, the following Shares (including Shares represented by ADSs) will be cancelled and
cease to exist at the Effective Time but will not be converted into the right to receive the consideration described in the immediately
preceding sentence:
| (a) | each of 13,446,959 Shares and 1,279,206 Shares represented
by ADSs held by Poly Victory, 14,400,765 Shares held by Ctrip Shanghai, 375,500 Shares
held by Mr. Shen, 3,275,389 Shares and 183,356 Shares represented by ADSs held by Smart
Master, 30,138 Shares held by Mr. Sun, 228,806 Shares held by Peace Unity, 74,272 Shares
and 10,000 Shares represented by ADSs held by Mr. Zong, and 317,294 Shares represented
by ADSs held by Wise Kingdom (collectively, the “Rollover Shares”), issued
and outstanding immediately prior to the Effective Time will be converted into and become
one validly issued, fully paid and non-assessable ordinary share, par value US$0.005
each, of the surviving company; |
| (b) | each of (i) the Shares held by the Company or any of
its subsidiaries and (ii) the Shares (including ADSs representing such Shares) held by
the ADS Depositary and reserved for issuance and allocation pursuant to the Company’s
Amended and Restated 2006 Share Incentive Plan (the “Share Incentive Plan”)
(collectively, the “Excluded Shares”), and ADSs representing the Excluded
Shares, in each case, issued and outstanding immediately prior to the Effective Time,
will be cancelled and cease to exist without payment of any consideration or distribution
therefor; and |
| (c) | each of the Shares that are issued and outstanding immediately
prior to the Effective Time and held by shareholders who have validly exercised and not
effectively withdrawn or lost their right to dissent from the Merger in accordance with
the Cayman Islands Companies Law (2013 Revision) (the “Cayman Islands Companies
Law”) (collectively, the “Dissenting Shares”), will be cancelled and
each holder thereof will be entitled to receive only the payment of the fair value of
such Dissenting Shares held by them in accordance with the Cayman Islands Companies Law. |
In addition to the foregoing, at the
Effective Time, (i) each option to purchase Shares granted under the Share Incentive Plan that is issued and outstanding
immediately prior to the Effective Time and shall have become vested on or prior to the Effective Time will be cancelled and converted
into the right to receive, as soon as practicable after the Effective Time, an amount equal to the product of (a) the total
number of Shares issuable under such option immediately prior to the Effective Time multiplied by (b) the excess of US$17.90
over the exercise price payable per Share under such option, if any, in cash, without interest and net of any applicable withholding
taxes, (ii) except as provided under the arrangement with respect to options held by certain directors, officers and employees
of the Company described below, each option to purchase Shares granted under the Share Incentive Plan that is issued and outstanding
immediately prior to the Effective Time and shall not have become vested on or prior to the Effective Time will be cancelled and
converted into the right to receive a restricted cash award subject to the same vesting conditions and schedules applicable to
such option, as soon as practicable after the Effective Time, in an amount equal to the product of (a) the total number of
Shares issuable under such option immediately prior to the Effective Time multiplied by (b) the excess of US$17.90 over the
exercise price payable per Share under such option, if any, in cash, without interest and net of any applicable withholding taxes,
and (iii) except as provided under the arrangement with respect to restricted share units held by certain directors, officers
and employees of the Company described below, each restricted share unit awarded under the Share Incentive Plan immediately prior
to the Effective Time will be cancelled and converted into the right to receive a restricted cash award subject to the same vesting
conditions and schedules applicable to such restricted share unit, as soon as practicable after the Effective Time, in an amount
equal to the product of (a) US$17.90 and (b) the total number of Shares underlying such restricted share unit, without interest
and net of any applicable withholding taxes. In the case that the exercise price per Share of any option is not lower than US$17.90,
such option will be cancelled for no consideration. The restricted cash awards which (i) would vest within two (2) years after
the Effective Time and are issued to certain directors, officers and employees of the Company who have executed and delivered
to BTG Hotels and Holdco, prior to the closing of the Merger, a letter agreement relating to certain confidentiality, non-competition
and employment undertakings (the “Selected Key Employees”), (ii) would vest within two (2) years after the Effective
Time and are issued to Yi Liu, Mr. Shen, Min Bao, Mr. Liang and Yunxin Mei, a former director of the Company appointed by Poly
Victory to the Board (collectively, the “Buyer Group Directors”), and (iii) are issued to the members of the Special
Committee, in each case, will be fully vested and payable when issued, and the surviving company will pay all amounts owed under
such restricted cash awards to the holders thereof as soon as practicable after closing of the Merger.
The Merger remains subject to the satisfaction
or waiver of the closing conditions set forth in the Merger Agreement, including obtaining certain required regulatory approvals,
the requisite approval of the shareholders of the Company, the requisite approval of BTG Hotels’ shareholders, as well as
certain other customary closing conditions. The Merger Agreement, the Plan of Merger and the transactions contemplated by the
Merger Agreement and the Plan of Merger (collectively, the “Transactions”), including the Merger, must be authorized
and approved by (i) a special resolution (as defined in the Cayman Islands Companies Law), which requires an affirmative vote
of shareholders representing at least two-thirds of the Shares present and voting in person or by proxy as a single class at the
extraordinary general meeting of the Company’s shareholders, and (ii) so long as the Shares (excluding the Shares held by
the Rollover Shareholders) present and voting in person or by proxy at the extraordinary general meeting of the Company’s
shareholders exceed 50% of all of the issued and outstanding Shares of the Company as of the close of business on the record date
established by the Company for such meeting, the affirmative vote of holders of Shares representing more than 50% of the Shares
(excluding the Shares held by the Rollover Shareholders) present and voting in person or by proxy as a single class at such meeting.
The Company will make available to
its shareholders a proxy statement (the “Proxy Statement,” a copy of which is attached as Exhibit (a)(1) to this Transaction
Statement), relating to the extraordinary general meeting of the Company’s shareholders, at which the Company’s shareholders
will consider and vote upon, among other proposals, a proposal to authorize and approve the Merger Agreement, the Plan of Merger
and the Transactions, including the Merger. Copies of the Merger Agreement and the Plan of Merger are attached to the Proxy Statement
as Annex A and Annex B, respectively, and are incorporated herein by reference.
The cross-references below are being
supplied pursuant to General Instruction G to Schedule 13E-3 and show the location in the Proxy Statement of the information required
to be included in response to the items of Schedule 13E-3. Pursuant to General Instruction F to Schedule 13E-3, the information
contained in the Proxy Statement, including all annexes thereto, is incorporated in its entirety herein by this reference, and
the responses to each item in this Schedule 13E-3 are qualified in their entirety by the information contained in the Proxy Statement
and the annexes thereto. Capitalized terms used but not defined in this Transaction Statement shall have the meanings given to
them in the Proxy Statement.
All information contained in this Transaction
Statement concerning each Filing Person has been supplied by such Filing Person and no Filing Person has produced any disclosure
with respect to any other Filing Person.
Item 1 |
Summary Term Sheet |
The information set forth in the Proxy Statement under the
following captions is incorporated herein by reference:
| • | “Questions and Answers about the Extraordinary
General Meeting and the Merger” |
Item 2 |
Subject Company Information |
| (a) | Name and Address. The information set forth in the
Proxy Statement under the following caption is incorporated herein by reference: |
| • | “Summary Term Sheet—The Parties Involved
in the Merger” |
| (b) | Securities. The information set forth in the Proxy
Statement under the following captions is incorporated herein by reference: |
| • | “The Extraordinary General Meeting—Record
Date; Shares and ADSs Entitled to Vote” |
| • | “The Extraordinary General Meeting—
Procedures for Voting” |
| • | “Security Ownership of Certain Beneficial
Owners and Management of the Company” |
| (c) | Trading Market and Price. The information set forth
in the Proxy Statement under the following caption is incorporated herein by reference: |
| • | “Market Price of the Company’s ADSs,
Dividends and Other Matters—Market Price of the ADSs” |
| (d) | Dividends. The information set forth in the Proxy
Statement under the following caption is incorporated herein by reference: |
| • | “Market Price of the Company’s ADSs,
Dividends and Other Matters—Dividend Policy” |
| (e) | Prior Public Offerings. The information set forth
in the Proxy Statement under the following caption is incorporated herein by reference: |
| • | “Transactions in Shares and ADSs—Prior
Public Offerings” |
| (f) | Prior Stock Purchases. The information set forth
in the Proxy Statement under the following caption is incorporated herein by reference: |
| • | “Transactions in Shares and ADSs” |
Item 3 |
Identity and Background of Filing Person |
| (a) | Name and Address. Homeinns Hotel Group is the subject
company. The information set forth in the Proxy Statement under the following captions
is incorporated herein by reference: |
| • | “Summary Term Sheet—The Parties Involved
in the Merger” |
| • | “Annex F—Directors and Executive Officers
of Each Filing Person” |
| (b) | Business and Background of Entities. The information
set forth in the Proxy Statement under the following captions is incorporated herein
by reference: |
| • | “Summary Term Sheet—The Parties Involved
in the Merger” |
| • | “Annex F—Directors and Executive Officers
of Each Filing Person” |
| (c) | Business and Background of Natural Persons. The information
set forth in the Proxy Statement under the following captions is incorporated herein
by reference: |
| • | “Summary Term Sheet—The Parties Involved
in the Merger” |
| • | “Annex F—Directors and Executive Officers
of Each Filing Person” |
Item 4 |
Terms of the Transaction |
| (a)-(1) | Material Terms—Tender Offers. Not applicable. |
| (a)-(2) | Material Terms—Mergers or Similar Transactions.
The information set forth in the Proxy Statement under the following captions is incorporated
herein by reference: |
| • | “Questions and Answers about the Extraordinary
General Meeting and the Merger” |
| • | “Special Factors—Background of the Merger” |
| • | “Special Factors—Reasons for the Merger
and Recommendation of the Special Committee and the Board” |
| • | “Special Factors—Purposes of and Reasons
for the Merger” |
| • | “Special Factors—Support Agreement” |
| • | “Special Factors—Interests of Certain
Persons in the Merger” |
| • | “Special Factors—Material U.S. Federal
Income Tax Consequences” |
| • | “The Extraordinary General Meeting” |
| • | “Annex A—Agreement and Plan of Merger” |
| • | “Annex B—Plan of Merger” |
| (c) | Different Terms. The information set forth in the
Proxy Statement under the following captions is incorporated herein by reference: |
| • | “Summary Term Sheet—Consortium Agreement” |
| • | “Special Factors—Interests of Certain
Persons in the Merger” |
| • | “The Extraordinary General Meeting—Proposals
to be Considered at the Extraordinary General Meeting” |
| • | “Annex A—Agreement and Plan of Merger” |
| • | “Annex B—Plan of Merger” |
| (d) | Appraisal Rights. The information set forth in the
Proxy Statement under the following captions is incorporated herein by reference: |
| • | “Questions and Answers about the Extraordinary
General Meeting and the Merger” |
| • | “Special Factors—Dissenters’ Rights” |
| • | “Annex D—Cayman Islands Companies Law
(2013 Revision)—Section 238” |
| (e) | Provisions for Unaffiliated Security Holders. The
information set forth in the Proxy Statement under the following caption is incorporated
herein by reference: |
| • | “Provisions for Unaffiliated Security Holders” |
| (f) | Eligibility for Listing or Trading. Not applicable. |
Item 5 |
Past Contracts, Transactions, Negotiations and Agreements |
| (a) | Transactions. The information set forth in the Proxy
Statement under the following captions is incorporated herein by reference: |
| • | “Special Factors—Interests of Certain
Persons in the Merger” |
| • | “Special Factors—Related-Party Transactions” |
| • | “Transactions in Shares and ADSs” |
| (b) | Significant Corporate Events. The information set
forth in the Proxy Statement under the following captions is incorporated herein by reference: |
| • | “Special Factors—Background of the
Merger” |
| • | “Special Factors—Reasons for the
Merger and Recommendation of the Special Committee and the Board” |
| • | “Special Factors—Purposes of and
Reasons for the Merger” |
| • | “Special Factors—Interests of Certain
Persons in the Merger” |
| • | “Special Factors—Related-Party Transactions—Share
Exchange” |
| • | “Annex A—Agreement and Plan of Merger” |
| • | “Annex B—Plan of Merger” |
| (c) | Negotiations or Contacts. The information set forth
in the Proxy Statement under the following captions is incorporated herein by reference: |
| • | “Special Factors—Background of the
Merger” |
| • | “Special Factors—Interests of Certain
Persons in the Merger” |
| • | “Special Factors—Related-Party Transactions—Share
Exchange” |
| • | “Annex A—Agreement and Plan” |
| • | “Annex B—Plan of Merger” |
| (e) | Agreements Involving the Subject Company’s
Securities. The information set forth in the Proxy Statement under the following captions
is incorporated herein by reference: |
| • | “Summary Term Sheet—Plans for the
Company after the Merger” |
| • | “Summary Term Sheet—Financing of
the Merger” |
| • | “Summary Term Sheet—Support Agreement” |
| • | “Summary Term Sheet—Consortium Agreement” |
| • | “Special Factors—Background of the
Merger” |
| • | “Special Factors—Plans for the Company
after the Merger” |
| • | “Special Factors—Financing of the
Merger” |
| • | “Special Factors—Support Agreement” |
| • | “Special Factors—Consortium Agreement” |
| • | “Special Factors—Interests of Certain
Persons in the Merger” |
| • | “Special Factors—Related-Party Transactions—Share
Exchange” |
| • | “Special Factors—Voting by the Buyer
Group at the Extraordinary General Meeting” |
| • | “Transactions in Shares and ADSs” |
| • | “Annex A—Agreement and Plan of Merger” |
| • | “Annex B—Plan of Merger” |
Item 6 |
Purposes of the Transaction and Plans or Proposals |
| (b) | Use of Securities Acquired. The information set forth
in the Proxy Statement under the following captions is incorporated herein by reference: |
| • | “Questions and Answers about the Extraordinary
General Meeting and the Merger” |
| • | “Special Factors—Purposes of and
Reasons for the Merger” |
| • | “Special Factors—Effects of the Merger
on the Company” |
| • | “Special Factors—Related-Party Transactions—Share
Exchange” |
| • | “Annex A—Agreement and Plan of Merger” |
| • | “Annex B—Plan of Merger” |
| (c)(1)-(8) | Plans. The information set forth in the Proxy
Statement under the following captions is incorporated herein by reference: |
| • | “Summary Term Sheet—The Merger Agreement” |
| • | “Summary Term Sheet—Purposes and
Effects of the Merger” |
| • | “Summary Term Sheet—Plans for the
Company after the Merger” |
| • | “Summary Term Sheet—Financing of
the Merger” |
| • | “Summary Term Sheet—Interests of
the Company’s Executive Officers and Directors in the Merger” |
| • | “Special Factors—Background of the
Merger” |
| • | “Special Factors—Reasons for the Merger
and Recommendation of the Special Committee and the Board” |
| • | “Special Factors—Purposes of and
Reasons for the Merger” |
| • | “Special Factors—Effects of the Merger
on the Company” |
| • | “Special Factors—Plans for the Company
after the Merger” |
| • | “Special Factors—Financing of the
Merger” |
| • | “Special Factors—Interests of Certain
Persons in the Merger” |
| • | “Special Factors—Related-Party Transactions—Share
Exchange” |
| • | “Annex A—Agreement and Plan of Merger” |
| • | “Annex B—Plan of Merger” |
Item
7 |
Purposes, Alternatives, Reasons and Effects
|
| (a) | Purposes. The information set forth in the Proxy
Statement under the following captions is incorporated herein by reference: |
| • | “Summary Term Sheet—Purposes and
Effects of the Merger” |
| • | “Summary Term Sheet—Plans for the
Company after the Merger” |
| • | “Special Factors—Reasons for the
Merger and Recommendation of the Special Committee and the Board” |
| • | “Special Factors—Purposes of and
Reasons for the Merger” |
| (b) | Alternatives. The information set forth in the Proxy
Statement under the following captions is incorporated herein by reference: |
| • | “Special Factors—Background of the
Merger” |
| • | “Special Factors—Reasons for the
Merger and Recommendation of the Special Committee and the Board” |
| • | “Special Factors—Position of the
Buyer Group as to the Fairness of the Merger” |
| • | “Special Factors—Purposes of and
Reasons for the Merger” |
| • | “Special Factors—Alternatives to
the Merger” |
| • | “Special Factors—Effects on the Company
if the Merger Is Not Completed” |
| (c) | Reasons. The information set forth in the Proxy Statement
under the following captions is incorporated herein by reference: |
| • | “Summary Term Sheet—Purposes and
Effects of the Merger” |
| • | “Special Factors—Background of the
Merger” |
| • | “Special Factors—Reasons for the
Merger and Recommendation of the Special Committee and the Board” |
| • | “Special Factors—Position of the Buyer
Group as to the Fairness of the Merger” |
| • | “Special Factors—Purposes of and
Reasons for the Merger” |
| • | “Special Factors—Effects of the Merger
on the Company” |
| (d) | Effects. The information set forth in the Proxy Statement
under the following captions is incorporated herein by reference: |
| • | “Summary Term Sheet—Purposes and Effects
of the Merger” |
| • | “Special Factors—Background of the
Merger” |
| • | “Special Factors—Reasons for the
Merger and Recommendation of the Special Committee and the Board” |
| • | “Special Factors—Effects of the Merger
on the Company” |
| • | “Special Factors—Plans for the Company
after the Merger” |
| • | “Special Factors—Effects on the Company
if the Merger Is Not Completed” |
| • | “Special Factors—Interests of Certain
Persons in the Merger” |
| • | “Special Factors—Material U.S. Federal
Income Tax Consequences” |
| • | “Special Factors—Material PRC Income
Tax Consequences” |
| • | “Special Factors—Material Cayman
Islands Tax Consequences” |
| • | “Annex A—Agreement and Plan of Merger” |
| • | “Annex B—Plan of Merger” |
Item 8 |
Fairness of the Transaction |
| (a)-(b) | Fairness; Factors Considered in Determining Fairness.
The information set forth in the Proxy Statement under the following captions is incorporated
herein by reference: |
| • | “Summary Term Sheet—Recommendations
of the Special Committee and the Board” |
| • | “Summary Term Sheet—Position of the
Buyer Group as to Fairness of the Merger” |
| • | “Summary Term Sheet—Opinions of the
Special Committee’s Financial Advisor” |
| • | “Summary Term Sheet—Interests of
the Company’s Executive Officers and Directors in the Merger” |
| • | “Special Factors—Background of the
Merger” |
| • | “Special Factors—Reasons for the Merger
and Recommendation of the Special Committee and the Board” |
| • | “Special Factors—Position of the
Buyer Group as to the Fairness of the Merger” |
| • | “Special Factors—Opinions of the
Special Committee’s Financial Advisor” |
| • | “Special Factors—Interests of Certain
Persons in the Merger” |
| • | “Annex C—Opinion of Credit Suisse
Securities (USA) LLC, Financial Advisor to the Special Committee” |
| (c) | Approval of Security Holders. The information set
forth in the Proxy Statement under the following captions is incorporated herein by reference: |
| • | “Summary Term Sheet—Shareholder Vote
Required to Approve the Merger Agreement and the Plan of Merger” |
| • | “Questions and Answers about the Extraordinary
General Meeting and the Merger” |
| • | “The Extraordinary General Meeting—Vote
Required” |
| (d) | Unaffiliated Representative. The information set
forth in the Proxy Statement under the following captions is incorporated herein by reference: |
| • | “Special Factors—Background of the
Merger” |
| • | “Special Factors—Reasons for the
Merger and Recommendation of the Special Committee and the Board” |
| • | “Special Factors—Opinions of the
Special Committee’s Financial Advisor” |
| • | “Annex C—Opinion of Credit Suisse
Securities (USA) LLC , Financial Advisor to the Special Committee” |
| (e) | Approval of Directors. The information set forth
in the Proxy Statement under the following captions is incorporated herein by reference: |
| • | “Summary Term Sheet—Recommendations
of the Special Committee and the Board” |
| • | “Questions and Answers about the Extraordinary
General Meeting and the Merger” |
| • | “Special Factors—Background of the
Merger” |
| • | “Special Factors—Reasons for the
Merger and Recommendation of the Special Committee and the Board” |
| (f) | Other Offers. The information set forth in the Proxy
Statement under the following captions is incorporated herein by reference: |
| • | “Special Factors—Background of the
Merger” |
| • | “Special Factors—Reasons for the Merger
and Recommendation of the Special Committee and the Board” |
Item 9 |
Reports, Opinions, Appraisals and Negotiations |
| (a) | Report, Opinion or Appraisal. The information set
forth in the Proxy Statement under the following captions is incorporated herein by reference: |
| • | “Summary Term Sheet—Opinions of the
Special Committee’s Financial Advisor” |
| • | “Special Factors—Background of the
Merger” |
| • | “Special Factors—Opinions of the
Special Committee’s Financial Advisor” |
| • | “Special Factors—Valuation Report
of the Financial Advisors for BTG Hotels” |
| • | “Annex C—Opinion of Credit Suisse
Securities (USA) LLC , Financial Advisor to the Special Committee” |
| (b) | Preparer and Summary of the Report, Opinion or Appraisal.
The information set forth in the Proxy Statement under the following captions is incorporated
herein by reference: |
| • | “Special Factors—Opinions of the
Special Committee’s Financial Advisor” |
| • | “Special Factors—Valuation Report
of the Financial Advisors for BTG Hotels” |
| • | “Annex C—Opinion of Credit Suisse
Securities (USA) LLC , Financial Advisor to the Special Committee” |
| (c) | Availability of Documents. The information set forth
in the Proxy Statement under the following caption is incorporated herein by reference: |
| • | “Where You Can Find More Information” |
The reports, opinions or appraisals referenced in this Item 9
will be made available for inspection and copying at the principal executive offices of the Company during its regular business
hours by any interested holder of the Shares and ADSs or his, her or its representative who has been so designated in writing.
Item 10 |
Source and Amounts of Funds or Other Consideration |
| (a) | Source of Funds. The information set forth in the
Proxy Statement under the following captions is incorporated herein by reference: |
| • | “Summary Term Sheet—Financing of
the Merger” |
| • | “Special Factors—Financing of the
Merger” |
| • | “Annex A—Agreement and Plan of Merger” |
| • | “Annex B—Plan of Merger” |
| (b) | Conditions. The information set forth in the Proxy
Statement under the following captions is incorporated herein by reference: |
| • | “Summary Term Sheet—Financing of
the Merger” |
| • | “Special Factors—Financing of the
Merger” |
| (c) | Expenses. The information set forth in the Proxy
Statement under the following caption is incorporated herein by reference: |
| • | “Summary Term Sheet—Fees and Expenses” |
| • | “Special Factors—Fees and Expenses” |
| (d) | Borrowed Funds. The information set forth in the
Proxy Statement under the following caption is incorporated herein by reference: |
| • | “Summary Term Sheet—Financing of
the Merger” |
| • | “Special Factors—Financing of the
Merger” |
| • | “The Merger Agreement—Debt Financing” |
Item 11 |
Interest in Securities of the Subject Company |
| (a) | Securities Ownership. The information set forth in
the Proxy Statement under the following captions is incorporated herein by reference: |
| • | “Summary Term Sheet—Interests of
the Company’s Executive Officers and Directors in the Merger” |
| • | “Special Factors—Interests of Certain
Persons in the Merger” |
| • | “Security Ownership of Certain Beneficial
Owners and Management of the Company” |
| (b) | Securities Transactions. The information set forth
in the Proxy Statement under the following caption is incorporated herein by reference: |
| • | “Transactions in Shares and ADSs” |
Item 12 |
The Solicitation or Recommendation |
| (d) | Intent to Tender or Vote in a Going-Private Transaction.
The information set forth in the Proxy Statement under the following captions is incorporated
herein by reference: |
| • | “Summary Term Sheet—Interests of
the Company’s Executive Officers and Directors in the Merger” |
| • | “Summary Term Sheet—Support Agreement” |
| • | “Questions and Answers about the Extraordinary
General Meeting and the Merger” |
| • | “Special Factors—Support Agreement” |
| • | “Special Factors—Voting by the Buyer
Group at the Extraordinary General Meeting” |
| • | “The Extraordinary General Meeting—Vote
Required” |
| • | “Security Ownership of Certain Beneficial
Owners and Management of the Company” |
| (e) | Recommendations of Others. The information set forth
in the Proxy Statement under the following captions is incorporated herein by reference: |
| • | “Summary Term Sheet—Recommendations
of the Special Committee and the Board” |
| • | “Summary Term Sheet—Position of the
Buyer Group as to Fairness of the Merger” |
| • | “Summary Term Sheet—Support Agreement” |
| • | “Special Factors—Reasons for the
Merger and Recommendation of the Special Committee and the Board” |
| • | “Special Factors—Position of the
Buyer Group as to the Fairness of the Merger” |
| • | “Special Factors—Support Agreement” |
| • | “The Extraordinary General Meeting—the
Board’s Recommendation” |
Item 13 |
Financial Statements |
| (a) | Financial Information. The audited financial statements
of the Company for the two years ended December 31, 2013 and 2014 are incorporated
herein by reference to the Company’s annual report on Form 20-F for the year ended
December 31, 2014, originally filed on April 24, 2015 (see page F-1 and following
pages). |
The information set forth in the Proxy Statement under the
following captions is incorporated herein by reference:
| • | “Where You Can Find More Information” |
| (b) | Pro Forma Information. Not applicable. |
Item 14 |
Persons/Assets, Retained, Employed, Compensated or Used |
| (a) | Solicitation or Recommendations. The information
set forth in the Proxy Statement under the following caption is incorporated herein by
reference: |
| • | “The Extraordinary General Meeting—Solicitation
of Proxies” |
| (b) | Employees and Corporate Assets. The information set
forth in the Proxy Statement under the following captions is incorporated herein by reference: |
| • | “Summary Term Sheet—The Parties Involved
in the Merger” |
| • | “Special Factors—Interests of Certain
Persons in the Merger” |
| • | “Annex F—Directors and Executive
Officers of Each Filing Person” |
Item 15 |
Additional Information |
| (b) | Other Material Information. The information contained
in the Proxy Statement, including all annexes thereto, is incorporated herein by reference. |
|
(a)-(1)† |
|
Proxy Statement of the Company, dated February 23, 2016 (the “Proxy Statement”). |
|
|
|
|
|
(a)-(2) |
|
Notice of Extraordinary General Meeting of Shareholders of the Company, incorporated herein
by reference to the Proxy Statement. |
|
|
|
|
|
(a)-(3) |
|
Form of Proxy Card, incorporated herein by reference to the Proxy Statement. |
|
|
|
|
|
(a)-(4) |
|
Form of ADS Voting Instruction Card, incorporated herein by reference to the Proxy Statement. |
|
|
|
|
|
(a)-(5) |
|
Press Release issued by the Company, dated December 7, 2015, incorporated herein by reference
to Exhibit 99.1 to the Report on Form 6-K furnished by the Company to the SEC on December 7, 2015 (File No. 001-33082). |
|
|
|
|
|
(b)-(1) |
|
Debt Commitment Letter, dated December 6, 2015, among Industrial and Commercial Bank of
China Limited, New York Branch, BTG Hotels and Holdco, incorporated herein by reference to Exhibit F to Amendment No. 1 to
Schedule 13D filed by BTG Hotels, Holdco, BTG, Poly Victory, Ctrip.com International, Ltd., C-Travel International Limited,
Ctrip.com (Hong Kong) Limited, Ctrip Shanghai, Mr. Shen, Smart Master, Mr. Liang, Ms. Lau, Wise
Kingdom, Mr. Sun, Townbright Holdings Limited, Peace Unity and Mr. Zong with the SEC
on December 7, 2015 (File No. 005-82520). |
|
|
|
|
|
(c)-(1) |
|
Opinion of Credit Suisse Securities (USA) LLC, dated December 5, 2015, incorporated herein
by reference to Annex C to the Proxy Statement. |
|
|
|
|
|
(c)-(2)* |
|
Discussion Materials prepared by Credit Suisse Securities (USA) LLC for discussion with
the special committee of the board of directors of the Company, dated December 5, 2015. |
|
|
|
|
|
(c)-(3)* |
|
English Translation of Valuation Report on Acquisition of Homeinns Hotel Group and Poly
Victory Investments Limited by BTG Hotels prepared by Huatai United Securities Co., Ltd. and CITIC Securities Co., Ltd., dated
December 23, 2015. |
|
|
|
|
|
(c)-(4)† |
|
English Translation of Memorandum regarding “Indicative Timeline” prepared
by Huatai United Securities Co., Ltd. and CITIC Securities Co., Ltd., dated July 28, 2015.
|
|
|
|
|
|
(c)-(5)† |
|
English Translation of Memorandum regarding
“Indicative Transaction Structure” prepared by Huatai United Securities Co., Ltd. and CITIC Securities
Co., Ltd., dated July 28, 2015.
|
|
|
|
|
|
(d)-(1) |
|
Agreement and Plan of Merger, dated December 6, 2015, among Holdco, Merger Sub, the Company
and, solely for the purposes of Section 6.02(e), Section 6.08, Section 6.09, Section 8.06, Section 9.09 and Section 9.10 thereof,
BTG Hotels, incorporated herein by reference to Annex A to the Proxy Statement. |
|
|
|
|
|
(d)-(2) |
|
English Translation of Agreement of Asset Purchase by Share Issue, dated December 6, 2015,
among BTG, BTG Hotels, Ctrip Shanghai, Wise Kingdom, Mr. Shen, Smart Master, Mr. Sun, Peace Unity and Mr. Zong, incorporated
herein by reference to Exhibit G to Amendment No. 1 to Schedule 13D filed by BTG Hotels, Holdco, BTG, Poly Victory, Ctrip.com
International, Ltd., C-Travel International Limited, Ctrip.com (Hong Kong) Limited, Ctrip Shanghai, Mr. Shen, Smart Master,
Mr. Liang, Ms. Lau, Wise Kingdom, Mr. Sun, Townbright Holdings Limited, Peace Unity and Mr. Zong with the SEC on December
7, 2015 (File No. 005-82520). |
|
|
|
|
|
(d)-(3) |
|
Support Agreement, dated December 6, 2015, among, BTG Hotels, Holdco, Poly Victory, Ctrip
Shanghai, Mr. Shen, Smart Master, Mr. Sun, Peace Unity, Mr. Zong and Wise Kingdom, incorporated herein by reference to Exhibit
H to Amendment No. 1 to Schedule 13D filed by BTG Hotels, Holdco, BTG, Poly Victory, Ctrip.com International, Ltd., C-Travel
International Limited, Ctrip.com (Hong Kong) Limited, Ctrip Shanghai, Mr. Shen, Smart Master, Mr. Liang, Ms. Lau, Wise Kingdom,
Mr. Sun, Townbright Holdings Limited, Peace Unity and Mr. Zong with the SEC on December 7, 2015 (File No. 005-82520). |
|
|
|
|
|
(d)-(4) |
|
Consortium Agreement, dated December 6, 2015, among BTG Hotels, Poly Victory, Ctrip.com
International, Ltd., Mr. Shen, Mr. Liang and Mr. Sun, incorporated herein by reference to Exhibit I to Amendment No. 1 to
Schedule 13D filed by BTG Hotels, Holdco, BTG, Poly Victory, Ctrip.com International, Ltd., C-Travel International Limited,
Ctrip.com (Hong Kong) Limited, Ctrip Shanghai, Mr. Shen, Smart Master, Mr. Liang, Ms. Lau, Wise Kingdom, Mr. Sun, Townbright
Holdings Limited, Peace Unity and Mr. Zong with the SEC on December 7, 2015 (File No. 005-82520). |
|
|
|
|
|
(d)-(5)* |
|
English Translation of Performance Guarantee, dated December 4, 2015, issued by Industrial
and Commercial Bank of China Limited, Beijing Central Business District Branch, in favor of Suzhou Hengchuang Software Co.,
Ltd. |
|
|
|
|
|
(d)-(6)* |
|
Confidentiality Agreement, dated as of June 30, 2015, by and among the Company, BTG Hotels, Poly Victory, Ctrip.com International,
Ltd., Mr. Shen, Mr. Liang and Mr. Sun. |
|
|
|
|
|
(f)-(1) |
|
Dissenters’ Rights, incorporated herein by reference to the section entitled “Dissenters’
Rights” in the Proxy Statement. |
|
|
|
|
|
(f)-(2) |
|
Section 238 of the Cayman Islands Companies Law (2013 Revision), incorporated herein by
reference to Annex D to the Proxy Statement. |
|
|
|
|
|
(g) |
|
Not applicable. |
|
|
|
|
|
* |
|
Previously filed |
|
|
|
|
|
† |
|
Filed herewith |
SIGNATURES
After due 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: February 23, 2016
|
|
|
|
Homeinns Hotel Group |
|
|
|
|
By |
/s/
Kenneth Gaw |
|
Name: |
Kenneth Gaw |
|
Title: |
Special Committee
Member |
|
|
|
|
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 |
|
|
|
|
BTG Hotels Group (CAYMAN) Holding Co., Ltd |
|
|
|
|
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 Travel Information Technology (Shanghai)
Co., Ltd. |
|
|
|
|
By |
/s/
Xiaofan Wang |
|
Name: |
Xiaofan Wang |
|
Title: |
Authorized Person |
|
|
|
Neil Nanpeng Shen |
|
|
|
/s/ Neil Nanpeng Shen |
|
Neil Nanpeng Shen |
|
|
|
Smart Master International Limited |
|
|
|
|
By |
/s/
Neil Nanpeng Shen |
|
Name: |
Neil Nanpeng
Shen |
|
Title: |
Director |
|
David
Jian Sun |
|
|
|
/s/ David
Jian Sun |
|
David Jian Sun |
|
|
|
Peace
Unity Investments Limited |
|
|
|
|
By |
/s/
David Jian Sun |
|
Name: |
David Jian Sun |
|
Title: |
Director |
|
|
|
|
Jason
Xiangxin Zong |
|
|
|
/s/ Jason
Xiangxin Zong |
|
Jason Xiangxin Zong |
|
|
|
James Jianzhang Liang
|
|
|
|
/s/ James Jianzhang Liang |
|
James Jianzhang Liang |
|
|
|
Wise
Kingdom Group Limited |
|
|
|
|
By |
/s/
Chung Lau |
|
Name: |
Chung Lau |
|
Title: |
Director |
EXHIBIT INDEX
(a)-(1)† |
|
Proxy Statement of the Company, dated February 23, 2016 (the “Proxy Statement”). |
|
|
|
(a)-(2) |
|
Notice of Extraordinary General Meeting of Shareholders of the Company, incorporated herein
by reference to the Proxy Statement. |
|
|
|
(a)-(3) |
|
Form of Proxy Card, incorporated herein by reference to the Proxy Statement. |
|
|
|
(a)-(4) |
|
Form of ADS Voting Instruction Card, incorporated herein by reference to the Proxy Statement. |
|
|
|
(a)-(5) |
|
Press Release issued by the Company, dated December 7, 2015, incorporated herein by reference
to Exhibit 99.1 to the Report on Form 6-K furnished by the Company to the SEC on December 7, 2015 (File No. 001-33082). |
|
|
|
(b)-(1) |
|
Debt Commitment Letter, dated December 6, 2015, among Industrial and Commercial Bank of
China Limited, New York Branch, BTG Hotels and Holdco, incorporated herein by reference to Exhibit F to Amendment No. 1 to
Schedule 13D filed by BTG Hotels, Holdco, BTG, Poly Victory, Ctrip.com International, Ltd., C-Travel International Limited,
Ctrip.com (Hong Kong) Limited, Ctrip Shanghai, Mr. Shen, Smart Master, Mr. Liang, Ms. Lau, Wise Kingdom, Mr. Sun, Townbright
Holdings Limited, Peace Unity and Mr. Zong with the SEC on December 7, 2015 (File No. 005-82520). |
|
|
|
(c)-(1) |
|
Opinion of Credit Suisse Securities (USA) LLC, dated December 5, 2015, incorporated herein
by reference to Annex C to the Proxy Statement. |
|
|
|
(c)-(2)* |
|
Discussion Materials prepared by Credit Suisse Securities (USA) LLC for discussion with
the special committee of the board of directors of the Company, dated December 5, 2015. |
|
|
|
(c)-(3)* |
|
English Translation of Valuation Report on Acquisition of Homeinns Hotel Group and Poly
Victory Investments Limited by BTG Hotels prepared by Huatai United Securities Co., Ltd. and CITIC Securities Co., Ltd., dated
December 23, 2015. |
|
|
|
(c)-(4)† |
|
English Translation of Memorandum regarding “Indicative Timeline” prepared by Huatai United Securities Co., Ltd. and CITIC Securities Co., Ltd.,
dated July 28, 2015.
|
|
|
|
(c)-(5)† |
|
English Translation of Memorandum regarding
“Indicative Transaction Structure” prepared by Huatai United Securities Co., Ltd. and CITIC Securities
Co., Ltd., dated July 28, 2015.
|
|
|
|
(d)-(1) |
|
Agreement and Plan of Merger, dated December 6, 2015, among Holdco, Merger Sub, the Company
and, solely for the purposes of Section 6.02(e), Section 6.08, Section 6.09, Section 8.06, Section 9.09 and Section 9.10 thereof,
BTG Hotels, incorporated herein by reference to Annex A to the Proxy Statement. |
|
|
|
(d)-(2) |
|
English Translation of Agreement of Asset Purchase by Share Issue, dated December 6, 2015,
among BTG, BTG Hotels, Ctrip Shanghai, Wise Kingdom, Mr. Shen, Smart Master, Mr. Sun, Peace Unity and Mr. Zong, incorporated
herein by reference to Exhibit G to Amendment No. 1 to Schedule 13D filed by BTG Hotels, Holdco, BTG, Poly Victory, Ctrip.com
International, Ltd., C-Travel International Limited, Ctrip.com (Hong Kong) Limited, Ctrip Shanghai, Mr. Shen, Smart Master,
Mr. Liang, Ms. Lau, Wise Kingdom, Mr. Sun, Townbright Holdings Limited, Peace Unity and Mr. Zong with the SEC on December
7, 2015 (File No. 005-82520). |
|
|
|
(d)-(3) |
|
Support Agreement, dated December 6, 2015, among, BTG Hotels, Holdco, Poly Victory, Ctrip
Shanghai, Mr. Shen, Smart Master, Mr. Sun, Peace Unity, Mr. Zong and Wise Kingdom, incorporated herein by reference to Exhibit
H to Amendment No. 1 to Schedule 13D filed by BTG Hotels, Holdco, BTG, Poly Victory, Ctrip.com International, Ltd., C-Travel
International Limited, Ctrip.com (Hong Kong) Limited, Ctrip Shanghai, Mr. Shen, Smart Master, Mr. Liang, Ms. Lau, Wise Kingdom,
Mr. Sun, Townbright Holdings Limited, Peace Unity and Mr. Zong with the SEC on December 7, 2015 (File No. 005-82520). |
|
|
|
(d)-(4) |
|
Consortium Agreement, dated December 6, 2015, among BTG Hotels, Poly Victory, Ctrip.com
International, Ltd., Mr. Shen, Mr. Liang and Mr. Sun, incorporated herein by reference to Exhibit I to Amendment No. 1 to
Schedule 13D filed by BTG Hotels, Holdco, BTG, Poly Victory, Ctrip.com International, Ltd., C-Travel International Limited,
Ctrip.com (Hong Kong) Limited, Ctrip Shanghai, Mr. Shen, Smart Master, Mr. Liang, Ms. Lau, Wise Kingdom, Mr. Sun, Townbright
Holdings Limited, Peace Unity and Mr. Zong with the SEC on December 7, 2015 (File No. 005-82520). |
|
|
|
(d)-(5)* |
|
English Translation of Performance Guarantee, dated December 4, 2015, issued by Industrial
and Commercial Bank of China Limited, Beijing Central Business District Branch, in favor of Suzhou Hengchuang Software Co.,
Ltd. |
|
|
|
(d)-(6)* |
|
Confidentiality Agreement, dated as of June 30, 2015, by and among the Company, BTG Hotels, Poly Victory, Ctrip.com International,
Ltd., Mr. Shen, Mr. Liang and Mr. Sun. |
|
|
|
(f)-(1) |
|
Dissenters’ Rights, incorporated herein by reference to the section entitled “Dissenters’
Rights” in the Proxy Statement. |
|
|
|
(f)-(2) |
|
Section 238 of the Cayman Islands Companies Law (2013 Revision), incorporated herein by
reference to Annex D to the Proxy Statement. |
|
|
|
(g) |
|
Not applicable. |
|
|
|
* |
|
Previously filed |
|
|
|
† |
|
Filed herewith |
PROXY STATEMENT OF THE COMPANY
Exhibit (a)-(1)
February 23, 2016
Shareholders of Homeinns Hotel Group
Re: Notice of Extraordinary General Meeting of Shareholders
Dear Shareholder:
You are cordially invited to attend an extraordinary
general meeting of shareholders of Homeinns Hotel Group, an exempted company with limited liability incorporated under the laws
of the Cayman Islands (the “Company”), to be held on March 25, 2016 at 10:00 a.m. (local time). The meeting will be
held at No. 124 Caobao Road, Xuhui District, Shanghai 200235, People’s Republic of China. The accompanying notice of
the extraordinary general meeting and proxy statement provide information regarding the matters to be acted on at the extraordinary
general meeting, including at any adjournment or postponement thereof.
The Company entered into the Agreement and
Plan of Merger (the “Merger Agreement”), dated as of December 6, 2015, with BTG Hotels Group (HONGKONG) Holdings Co.,
Limited (“Holdco”), a wholly owned subsidiary of BTG Hotels (Group) Co., Ltd., a PRC joint stock company that is listed
on the Shanghai Stock Exchange and principally engaged in the management of hotels and tourism destinations (“BTG Hotels”
or “Parent”), BTG Hotels Group (CAYMAN) Holding Co., Ltd (“Merger Sub”), a wholly owned subsidiary of
Holdco, and solely for the purposes of certain sections thereof, BTG Hotels. Pursuant to the Merger Agreement, Merger Sub will
be merged with and into the Company (the “Merger”), with the Company continuing as the surviving company (the “surviving
company”). Pursuant to the Merger Agreement, the Company will be acquired by BTG Hotels and, following the closing of the
Merger, beneficially owned by BTG Hotels and the Rollover Shareholders described below, each of which is an existing shareholder,
director and/or officer of the Company or an affiliate of the foregoing, as applicable. The purpose of the extraordinary general
meeting is for you and the other shareholders of the Company to consider and vote upon, among other proposals, a proposal to authorize
and approve the Merger Agreement, the plan of merger required to be filed with the Registrar of Companies of the Cayman Islands
(the “Cayman Registrar”) in connection with the Merger (the “Plan of Merger”), and the transactions contemplated
by the Merger Agreement and the Plan of Merger (collectively, the “Transactions”), including the Merger. Copies of
the Merger Agreement and the Plan of Merger are attached as Annex A and Annex B, respectively, to the accompanying proxy statement.
Merger Sub and Holdco were formed solely for
the purpose of the Merger. BTG Hotels is the sole shareholder of Holdco. If the Merger is completed, the Company will continue
its operations as a privately held company and will be beneficially owned by Holdco and Poly Victory Investments Limited, a company
organized and existing under the laws of the British Virgin Islands (“Poly Victory”), which is wholly owned and controlled
by Beijing Tourism Group Co., Ltd., a company organized and existing under the laws of the PRC (“BTG”), Ctrip Travel
Information Technology (Shanghai) Co., Ltd., a limited liability company established and existing under the laws of the People’s
Republic of China (the “PRC”) (“Ctrip Shanghai”), Neil Nanpeng Shen, co-founder, co-chairman of the board
of directors, and an independent director of the Company (“Mr. Shen”), Smart Master International Limited, a company
organized and existing under the laws of the British Virgin Islands owned and controlled by Mr. Shen and his spouse (“Smart
Master”), Mr. David Jian Sun, the chief executive officer and a director of the Company (“Mr. Sun”), Peace
Unity Investments Limited, a company organized and existing under the laws of the British Virgin Islands indirectly owned and
controlled by Mr. Sun (“Peace Unity”), Jason Xiangxin Zong, the chief operating officer of the Company (“Mr.
Zong”), and Wise Kingdom Group Limited, a company organized and existing under the laws of the British Virgin Islands wholly
owned and controlled by Ms. Chung Lau (“Ms. Lau”), the spouse of Mr. James Jianzhang Liang, co-founder and independent
director of the Company (“Mr. Liang”) (“Wise Kingdom”, together with Poly Victory, Ctrip Shanghai, Mr.
Shen, Smart Master, Mr. Sun, Peace Unity, and Mr. Zong, the “Rollover Shareholders”). As of the date of the accompanying
proxy statement, the Rollover Shareholders collectively beneficially own approximately 34.5% of the Company’s issued and
outstanding ordinary shares, par value US$0.005 per share (each, a “Share”) (excluding, for purposes of this calculation,
Shares issuable to the Rollover Shareholders upon the exercise of options of the Company). As the result of the Merger, the Company’s
American depositary shares (“ADSs”), each representing two Shares, will no longer be listed on the NASDAQ Global Market
(“NASDAQ”) and the American depositary shares program (“ADS program”) for the Shares will terminate.
If the Merger is completed, each Share issued
and outstanding immediately prior to the effective time of the Merger (the “Effective Time”), other than the Rollover
Shares, the Excluded Shares, and the Dissenting Shares, each as described below, will be cancelled and cease to exist and will
be converted into and exchanged for the right to receive US$17.90 per Share and each ADS issued and outstanding immediately prior
to the Effective Time, other than ADSs representing Rollover Shares or Excluded Shares, will represent the right to surrender
the ADS in exchange for US$35.80 per ADS (less cancellation fees of US$0.05 per ADS pursuant to the terms of the Deposit Agreement,
dated as of October 31, 2006, among the Company, The Bank of New York Mellon, in its capacity as the ADS depositary (the “ADS
Depositary”), and the holders and beneficial owners of ADSs issued thereunder (the “Deposit Agreement”)), in
each case, in cash, without interest and net of any applicable withholding taxes. If the Merger is completed, the following Shares
(including Shares represented by ADSs) will be cancelled and cease to exist at the Effective Time but will not be converted into
the right to receive the consideration described in the immediately preceding sentence:
(a) each
of 13,446,959 Shares and 1,279,206 Shares represented by ADSs held by Poly Victory, 14,400,765 Shares held by Ctrip Shanghai,
375,500 Shares held by Mr. Shen, 3,275,389 Shares and 183,356 Shares represented by ADSs held by Smart Master, 30,138 Shares held
by Mr. Sun, 228,806 Shares held by Peace Unity, 74,272 Shares and 10,000 Shares represented by ADSs held by Mr. Zong, and 317,294
Shares represented by ADSs held by Wise Kingdom (collectively, the “Rollover Shares”), issued and outstanding immediately
prior to the Effective Time will be converted into and become one validly issued, fully paid and non-assessable ordinary share,
par value US$0.005 each, of the surviving company;
(b) each
of (i) the Shares held by the Company or any of its subsidiaries and (ii) the Shares (including ADSs representing such Shares)
held by the ADS Depositary and reserved for issuance and allocation pursuant to the Company’s Amended and Restated 2006
Share Incentive Plan (the “Share Incentive Plan”) (collectively, the “Excluded Shares”), and ADSs representing
the Excluded Shares, in each case, issued and outstanding immediately prior to the Effective Time, will be cancelled and cease
to exist without payment of any consideration or distribution therefor; and
(c) each
of the Shares that are issued and outstanding immediately prior to the Effective Time and held by shareholders who have validly
exercised and not effectively withdrawn or lost their right to dissent from the Merger in accordance with the Cayman Islands Companies
Law (2013 Revision) (the “Cayman Islands Companies Law”) (collectively, the “Dissenting Shares”),
will be cancelled and each holder thereof will be entitled to receive only the payment of the fair value of such Dissenting Shares
held by them in accordance with the Cayman Islands Companies Law.
In addition to the foregoing, at the Effective
Time, (i) each option to purchase Shares granted under the Share Incentive Plan that is issued and outstanding immediately
prior to the Effective Time and shall have become vested on or prior to the Effective Time will be cancelled and converted into
the right to receive, as soon as practicable after the Effective Time, an amount equal to the product of (a) the total number
of Shares issuable under such option immediately prior to the Effective Time multiplied by (b) the excess of US$17.90 over
the exercise price payable per Share under such option, if any, in cash, without interest and net of any applicable withholding
taxes, (ii) except as provided under the arrangement with respect to options held by certain directors, officers and employees
of the Company described below, each option to purchase Shares granted under the Share Incentive Plan that is issued and outstanding
immediately prior to the Effective Time and shall not have become vested on or prior to the Effective Time will be cancelled and
converted into the right to receive a restricted cash award subject to the same vesting conditions and schedules applicable to
such option, as soon as practicable after the Effective Time, in an amount equal to the product of (a) the total number of
Shares issuable under such option immediately prior to the Effective Time multiplied by (b) the excess of US$17.90 over the
exercise price payable per Share under such option, if any, in cash, without interest and net of any applicable withholding taxes,
and (iii) except as provided under the arrangement with respect to restricted share units held by certain directors, officers
and employees of the Company described below, each restricted share unit awarded under the Share Incentive Plan immediately prior
to the Effective Time will be cancelled and converted into the right to receive a restricted cash award subject to the same vesting
conditions and schedules applicable to such restricted share unit, as soon as practicable after the Effective Time, in an amount
equal to the product of (a) US$17.90 and (b) the total number of Shares underlying such restricted share unit, without interest
and net of any applicable withholding taxes. In the case that the exercise price per Share of any option is not lower than US$17.90,
such option will be cancelled for no consideration. The restricted cash awards which (i) would vest within two (2) years after
the Effective Time and are issued to certain directors, officers and employees of the Company who have executed and delivered
to BTG Hotels and Holdco, prior to the closing of the Merger, a letter agreement relating to certain confidentiality, non-competition
and employment undertakings (the “Selected Key Employees”), (ii) would vest within two (2) years after the Effective
Time and are issued to Yi Liu, Mr. Shen, Min Bao, Mr. Liang and Yunxin Mei, a former director of the Company appointed by Poly
Victory to the Board (collectively, the “Buyer Group Directors”), and (iii) are issued to the members of the Special
Committee, in each case, will be fully vested and payable when issued, and the surviving company will pay all amounts owed under
such restricted cash awards to the holders thereof as soon as practicable after closing of the Merger.
A special committee (the “Special Committee”)
of the board of directors of the Company (the “Board”), composed solely of directors who are unaffiliated with Parent,
Holdco, Merger Sub, any of the Rollover Shareholders or any member of the management of the Company, reviewed and considered the
terms and conditions of the Merger Agreement, the Plan of Merger and the Transactions, including the Merger. The Special Committee,
after consultation with its financial advisor and legal counsel and due consideration, unanimously (a) determined that the
Merger Agreement, the Plan of Merger and the Transactions, including the Merger, on the terms and subject to the conditions set
forth in the Merger Agreement, are fair to and in the best interest of the Company and its shareholders (other than shareholders
who are affiliates of the Company, including the Rollover Shareholders) (such shareholders are referred to herein as the “Unaffiliated
Security Holders”), (b) declared it advisable for the Company to enter into the Merger Agreement, the Plan of Merger
and the Transactions, including the Merger, and (c) recommended that the Board authorize and approve the Merger Agreement,
the Plan of Merger and the Transactions, including the Merger.
At a meeting on December 5, 2015, the Board,
acting upon the unanimous recommendation of the Special Committee and after each director duly disclosed his interests in the
Transactions, including the Merger, as required by the memorandum and articles of association of the Company as amended to date
and the Cayman Islands Companies Law, unanimously (a) determined that the Merger Agreement, the Plan of Merger and the Transactions,
including the Merger, on the terms and subject to the conditions set forth in the Merger Agreement, are fair to, and in the best
interests of, the Company and its shareholders (other than the Rollover Shareholders) and declared it advisable for the Company
to enter into the Transactions, including the Merger, (b) authorized and approved the execution, delivery and performance
of the Merger Agreement, the Plan of Merger and the consummation of the Transactions, including the Merger, (c) directed
that the Merger Agreement, the Plan of Merger and the Transactions, including the Merger, be submitted to the shareholders of
the Company for authorization and approval, and (d) subject to the terms of the Merger Agreement, resolved to recommend the approval
of the Merger Agreement, the Plan of Merger and the Transactions, including the Merger, to the shareholders of the Company.
The Board unanimously recommends that you
vote FOR the proposal to authorize and approve the Merger Agreement, the Plan of Merger and the Transactions, including the Merger
and, upon the Merger becoming effective, the amendment and restatement of the memorandum and articles of association of the Company
(as the surviving company) in the form attached to the Plan of Merger, FOR the proposal to authorize each director or officer
of the Company to do all things necessary to give effect to the Merger Agreement, the Plan of Merger and the Transactions, including
the Merger, and FOR the proposal to adjourn the extraordinary general meeting in order to allow the Company to solicit additional
proxies in the event that there are insufficient proxies received at the time of the extraordinary general meeting to pass the
special resolutions to be proposed at the extraordinary general meeting.
In considering the recommendation of the Special
Committee and the Board, you should be aware that some of the Company’s directors and executive officers have interests
in the Merger that are different from, and/or in addition to, the interests of the Company’s shareholders generally. The
Special Committee and the Board were aware of these potential conflicts of interest and considered them, among other matters,
in reaching their decisions and recommendations with respect to the Merger Agreement and related matters. As of the date of the
accompanying proxy statement, the Rollover Shareholders collectively beneficially own approximately 34.5% of the Company’s
issued and outstanding Shares (excluding, for purposes of this calculation, Shares issuable to the Rollover Shareholders upon
the exercise of options of the Company). Pursuant to the terms of a support agreement (the “Support Agreement”), dated
December 6, 2015, among BTG Hotels, Holdco and the Rollover Shareholders, each Rollover Shareholder agrees (i) to vote any and
all of their Shares in favor of the authorization and approval of the Merger Agreement, the Plan of Merger and the transaction
contemplated by the Merger Agreement, including the Merger, and to appoint 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. In addition, the Special Committee and the Board
were aware that certain directors and officers of the Company hold the Rollover Shares, which, pursuant to the terms of an agreement
of asset purchase by share issue, dated December 6, 2015, among BTG Hotels, BTG and the Rollover Shareholders (other than Poly
Victory), will be exchanged for a certain number of common shares of BTG Hotels at the completion of the share exchange transaction
contemplated by such agreement and have entered into certain other transactions with the members of the Buyer Group or their affiliates.
The accompanying proxy statement provides detailed
information about the Merger and the extraordinary general meeting. We encourage you to read the entire document and all of the
attachments and other documents referred to or incorporated by reference herein carefully. You may also obtain more information
about the Company from documents the Company has filed with the United States Securities and Exchange Commission (the “SEC”),
which are available for free at the SEC’s website www.sec.gov.
Regardless of the number of Shares that you
own, your vote is very important. The Merger cannot be completed unless the Merger Agreement, the Plan of Merger and the Transactions,
including the Merger, are authorized and approved by (i) a special resolution (as defined in the Cayman Islands Companies Law),
which requires an affirmative vote of shareholders representing at least two-thirds of the Shares present and voting in person
or by proxy as a single class at the extraordinary general meeting of the Company’s shareholders, and (ii) so long as the
Shares (excluding the Shares held by the Rollover Shareholders) present and voting in person or by proxy at the extraordinary
general meeting of the Company’s shareholders exceed 50% of all of the issued and outstanding Shares of the Company as of
the close of business on the Share Record Date, the affirmative vote of holders of Shares representing more than 50% of the Shares
(excluding the Shares held by the Rollover Shareholders) present and voting in person or by proxy as a single class at such meeting
(the “Majority of Minority Vote Requirement”).
Assuming the Rollover Shareholders comply
with their voting undertakings under the Support Agreement, based on the number of Shares expected to be issued and outstanding
and entitled to vote as of the close of business in the Cayman Islands on March 4, 2016, the record date for voting Shares at
the extraordinary general meeting (the “Share Record Date”), in order for the proposal to be authorized and approved:
| (a) | assuming all issued and outstanding Shares expected to
be issued and outstanding and entitled to vote at the meeting are present in person or
by proxy and voting at the meeting, at least 31,374,565 Shares other than the Shares held by
the Rollover Shareholders must be voted in favor of the special resolutions to be proposed
at the extraordinary general meeting, including the special resolution to approve the
Merger Agreement, the Plan of Merger and the Transactions, including the Merger; and |
| (b) | in order to satisfy the Majority of Minority Vote Requirement,
assuming all issued and outstanding Shares expected to be issued and outstanding and
entitled to vote at the meeting are present in person or by proxy and voting at the meeting,
at least 31,946,345 Shares held by the Company’s shareholders other than the Rollover
Shareholders must be voted in favor of the proposal to authorize and approve the Merger
Agreement, the Plan of Merger and the Transactions, including the Merger. |
Voting at the extraordinary general meeting
will take place by poll voting, as the chairman of the Board has undertaken to demand poll voting at the meeting. Whether or not
you plan to attend the extraordinary general meeting, please complete the accompanying proxy card, in accordance with the instructions
set forth on the proxy card, as promptly as possible. The deadline to lodge your proxy card is March 23, 2016 at 10:00 a.m. (Shanghai
time). Each shareholder has one vote for each Share held as of the close of business in the Cayman Islands on the Share Record
Date.
Completing the proxy card in accordance with
the instructions set forth on the proxy card will not deprive you of your right to attend the extraordinary general meeting and
vote your Shares in person. Please note, however, that if your Shares are held of record by a broker, bank or other nominee and
you wish to vote at the extraordinary general meeting in person, you must obtain from the record holder a proxy issued in your
name. If you submit a signed proxy card without indicating how you wish to vote, the Shares represented by your proxy card will
be voted FOR the proposal to authorize and approve the Merger Agreement, the Plan of Merger and the Transactions, including the
Merger and, upon the Merger becoming effective, the amendment and restatement of the memorandum and articles of association of
the Company (as the surviving company) in the form attached to the Plan of Merger, FOR the proposal to authorize each director
or officer of the Company to do all things necessary to give effect to the Merger Agreement, the Plan of Merger and the Transactions,
including the Merger, and FOR the proposal to adjourn the extraordinary general meeting in order to allow the Company to solicit
additional proxies in the event that there are insufficient proxies received at the time of the extraordinary general meeting
to pass the special resolutions to be proposed at the extraordinary general meeting.
As the record holder of the Shares represented
by ADSs, the ADS Depositary will endeavor to vote (or will endeavor to cause the vote of) the Shares it holds on deposit at the
extraordinary general meeting in accordance with the voting instructions timely received from holders of ADSs at the close of
business in New York City on February 23, 2016 (the “ADS Record Date”). The ADS Depositary must receive such instructions
no later than 5:00 p.m. (New York City time) on March 21, 2016. The ADS Depositary has advised us that, pursuant to Section 4.7
of the Deposit Agreement, it will not vote or attempt to exercise the right to vote any Shares other than in accordance with signed
voting instructions from the relevant ADS holder and, accordingly, Shares represented by ADSs for which no timely voting instructions
are received by the ADS Depositary will not be voted. If you hold your ADSs in a brokerage, bank or other nominee account, you
must rely on the procedures of the broker, bank or other nominee through which you hold your ADSs if you wish to vote.
Holders of ADSs will not be able to attend
the extraordinary general meeting unless they cancel their ADSs and become holders of Shares prior to the close of business in
the Cayman Islands on March 4, 2016, the Share Record Date. ADS holders who wish to cancel their ADSs need to make arrangements
to deliver the ADSs (or to the extent ADSs are certificated, the certificates evidencing such ADSs) to the ADS Depositary for
cancellation before 5:00 p.m. (New York City time) on March 1, 2016 together with (a) delivery instructions for the
corresponding Shares (including the name and address of the person who will be the registered holder of such Shares), (b) payment
of the ADS cancellation fees (US$0.05 for each ADS) to be cancelled pursuant to the terms of the Deposit Agreement and any applicable
taxes, and (c) a certification that the ADS holder either (i) held the ADSs as of the ADS Record Date and has not given,
and will not give, voting instructions to the ADS Depositary as to the ADSs being cancelled, or has given voting instructions
to the ADS Depositary as to the ADSs being cancelled but undertakes not to vote the corresponding Shares at the extraordinary
general meeting or (ii) did not hold the ADSs as of the ADS Record Date and undertakes not to vote the corresponding Shares
at the extraordinary general meeting. If you hold your ADSs in a brokerage, bank or other nominee account, please contact your
broker, bank or other nominee to find out what actions you need to take to instruct the broker, bank or other nominee to cancel
the ADSs on your behalf. Upon cancellation of the ADSs, the ADS Depositary will transfer registration of the Shares to the former
ADS holder (or a person designated by the former ADS holder). If after the registration of Shares in your name you wish to receive
a certificate evidencing the Shares registered in your name, you will need to request the Cayman Registrar of Shares, Maples Corporate
Services Limited, to issue and mail a certificate to your attention. If the Merger is not completed, the Company would continue
to be a public company in the United States and ADSs would continue to be listed on NASDAQ. Shares are not listed and cannot be
traded on any stock exchange other than NASDAQ, and in such case only in the form of ADSs. As a result, if you have cancelled
your ADSs to attend the extraordinary general meeting and the Merger is not completed and you wish to be able to sell your Shares
on a stock exchange, you would need to deposit your Shares into the Company’s ADS program for the issuance of the corresponding
number of ADSs, subject to the terms and conditions of applicable law and the Deposit Agreement, including, among other things,
payment of relevant fees of the ADS Depositary for the issuance of ADSs and applicable share transfer taxes (if any) and related
charges pursuant to the Deposit Agreement.
Shareholders who dissent from the Merger in
accordance with Section 238 of the Cayman Islands Companies Law will have the right to receive payment of the fair value
of their Shares if the Merger is completed, but only if they deliver to the Company, before the vote to authorize and approve
the Merger is taken at the extraordinary general meeting, a written objection to the Merger and subsequently comply with all procedures
and requirements of Section 238 of the Cayman Islands Companies Law for the exercise of dissenters’ rights, which is
attached as Annex D to the accompanying proxy statement. The fair value of your Shares as determined under the Cayman Islands
Companies Law could be more than, the same as or less than the merger consideration you would receive pursuant to the Merger Agreement
if you do not exercise dissenters’ rights with respect to your Shares.
ADS HOLDERS WILL NOT HAVE THE RIGHT TO
EXERCISE DISSENTERS’ RIGHTS AND RECEIVE PAYMENT OF THE FAIR VALUE OF THE SHARES UNDERLYING THEIR ADSs. THE ADS DEPOSITARY
WILL NOT ATTEMPT TO EXERCISE ANY DISSENTERS’ RIGHTS WITH RESPECT TO ANY OF THE SHARES THAT IT HOLDS, EVEN IF AN ADS HOLDER
REQUESTS THE ADS DEPOSITARY TO DO SO. ADS HOLDERS WISHING TO EXERCISE DISSENTERS’ RIGHTS MUST SURRENDER THEIR ADSs TO THE
ADS DEPOSITARY, PAY THE ADS DEPOSITARY’S FEES REQUIRED FOR THE CANCELLATION OF THEIR ADSs, PROVIDE INSTRUCTIONS FOR THE
REGISTRATION OF THE CORRESPONDING SHARES IN THE COMPANY’S REGISTER OF MEMBERS, CERTIFY THAT THEY HAVE NOT GIVEN, AND WILL
NOT GIVE, VOTING INSTRUCTIONS AS TO THEIR ADSs (OR, ALTERNATIVELY, THAT THEY WILL NOT VOTE THE CORRESPONDING SHARES) BEFORE 5:00
P.M. (NEW YORK CITY TIME) ON MARCH 1, 2016 AND BECOME REGISTERED HOLDERS OF SHARES BEFORE THE VOTE ON THE MERGER IS TAKEN AT THE
EXTRAORDINARY GENERAL MEETING. THEREAFTER, SUCH FORMER ADS HOLDERS MUST COMPLY WITH THE PROCEDURES AND REQUIREMENTS FOR EXERCISING
DISSENTERS’ RIGHTS WITH RESPECT TO THE SHARES UNDER SECTION 238 OF THE CAYMAN ISLANDS COMPANIES LAW. IF THE MERGER IS NOT
COMPLETED, THE COMPANY WOULD CONTINUE TO BE A PUBLIC COMPANY IN THE UNITED STATES AND ADSs WOULD CONTINUE TO BE LISTED ON NASDAQ.
SHARES ARE NOT LISTED AND CANNOT BE TRADED ON ANY STOCK EXCHANGE OTHER THAN NASDAQ, AND IN SUCH CASE ONLY IN THE FORM OF ADSs.
AS A RESULT, IF A FORMER ADS HOLDER HAS CANCELLED HIS, HER OR ITS ADSs TO EXERCISE DISSENTERS’ RIGHTS AND THE MERGER IS
NOT COMPLETED AND SUCH FORMER ADS HOLDER WISHES TO BE ABLE TO SELL HIS, HER OR ITS SHARES ON A STOCK EXCHANGE, SUCH FORMER ADS
HOLDER WOULD NEED TO DEPOSIT HIS, HER OR ITS SHARES INTO THE COMPANY’S ADS PROGRAM FOR THE ISSUANCE OF THE CORRESPONDING
NUMBER OF ADSs, SUBJECT TO THE TERMS AND CONDITIONS OF APPLICABLE LAW AND THE DEPOSIT AGREEMENT, INCLUDING, AMONG OTHER THINGS,
PAYMENT OF RELEVANT FEES OF THE ADS DEPOSITARY FOR THE ISSUANCE OF ADSs AND APPLICABLE SHARE TRANSFER TAXES (IF ANY) AND RELATED
CHARGES PURSUANT TO THE DEPOSIT AGREEMENT.
Neither the SEC nor any state securities regulatory
agency has approved or disapproved the Merger, passed upon the merits or fairness of the Merger or passed upon the adequacy or
accuracy of the disclosure in this letter or in the accompanying notice of the extraordinary general meeting or proxy statement.
Any representation to the contrary is a criminal offense.
If you have any questions or need assistance
voting your Shares, please call MacKenzie Partners, Inc., the Company’s proxy solicitor, toll-free at 1-800-322-2885 (or
+1-212-929-5500 outside of the United States) (call collect) or via email at homeinns@mackenziepartners.com.
Thank you for your cooperation and continued
support.
Sincerely, |
Sincerely, |
Sincerely, |
|
|
|
/s/ Kenneth Gaw |
/s/ Yi Liu |
/s/ Neil
Nanpeng Shen |
Kenneth Gaw |
Yi Liu |
Neil Nanpeng
Shen |
On behalf of
the Special Committee |
Co-Chairman
of the Board |
Co-Chairman of
the Board |
The accompanying proxy statement is
dated February 23, 2016, and is first being mailed to the Company’s shareholders and ADS holders on or about February 26,
2016.
HOMEINNS
HOTEL GROUP
NOTICE
OF EXTRAORDINARY GENERAL MEETING OF SHAREHOLDERS TO BE HELD ON
MARCH
25, 2016
Dear Shareholder:
Notice is hereby given that an extraordinary
general meeting of the shareholders of Homeinns Hotel Group (referred to herein alternately as “the Company,” “us,”
“we” or other terms correlative thereto), will be held on March 25, 2016 at 10:00 a.m. (local time) at No. 124 Caobao
Road, Xuhui District, Shanghai 200235, People’s Republic of China.
Only registered holders of ordinary shares
of the Company, par value US$0.005 per share (each, a “Share”), at the close of business in the Cayman Islands on
March 4, 2016 (the “Share Record Date”) or their proxy holders are entitled to vote at this extraordinary general
meeting or any adjournment thereof. At the extraordinary general meeting, you will be asked to consider and vote upon the following
resolutions:
THAT the Agreement and Plan
of Merger, dated as of December 6, 2015 (as amended from time to time, the “Merger Agreement”), among BTG Hotels Group
(HONGKONG) Holdings Co., Limited, a company incorporated under the laws of the Hong Kong Special Administrative Region (“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 purposes of Section 6.02(e),
Section 6.08, Section 6.09, Section 8.06, Section 9.09 and Section 9.10 thereof, BTG Hotels (Group) Co., Ltd., a joint stock company
established and existing under the laws of the People’s Republic of China (the Merger Agreement being in the form attached
as Annex A to the accompanying proxy statement and to be produced and made available for inspection at the extraordinary general
meeting), the Plan of Merger (the “Plan of Merger”) required to be registered with the Registrar of Companies in the
Cayman Islands (the Plan of Merger being substantially in the form attached as Annex B to the accompanying proxy statement and
to be produced and made available for inspection at the extraordinary general meeting) in order to give effect to the merger of
Merger Sub with and into the Company, with the Company continuing as the surviving company (the “Merger”), and any
and all transactions contemplated by the Merger Agreement and the Plan of Merger (collectively, the “Transactions”),
including (i) the Merger, and (ii) upon the Merger becoming effective, the amendment and restatement of the existing memorandum
and articles of association of the Company (as the surviving company) by the deletion in their entirety and the substitution in
their place of the new memorandum and articles of association in the form attached as Appendix II to the Plan of Merger, be authorized
and approved;
THAT each director or officer
of the Company be authorized to do all things necessary to give effect to the Merger Agreement, the Plan of Merger and the Transactions,
including the Merger; and
| · | if necessary,
as an ordinary resolution: |
THAT the extraordinary general
meeting be adjourned in order to allow the Company to solicit additional proxies in the event that there are insufficient proxies
received at the time of the extraordinary general meeting to pass the special resolutions to be proposed at the extraordinary
general meeting.
Please refer to the accompanying proxy statement,
which is attached to and made a part of this notice. A list of the Company’s shareholders will be available at its principal
executive offices at No. 124 Caobao Road, Xuhui District, Shanghai 200235, People’s Republic of China, during ordinary business
hours for the two business days immediately prior to the extraordinary general meeting.
After careful consideration and upon the unanimous
recommendation of a special committee (the “Special Committee”) of the board of directors of the Company (the “Board”),
composed solely of directors who are unaffiliated with Parent, Holdco, Merger Sub, any of the Rollover Shareholders or any member
of the management of the Company, the Board, acting upon the unanimous recommendation of the Special Committee and after each
director duly disclosed his interests in the Transactions, including the Merger, as required by the memorandum and articles of
association of the Company as amended to date and the Cayman Islands Companies Law (2013 Revision) (the “Cayman Islands
Companies Law”), unanimously (a) determined that the Merger Agreement, the Plan of Merger and the Transactions, including
the Merger, on the terms and subject to the conditions set forth in the Merger Agreement, are fair to, and in the best interests
of, the Company and its shareholders (other than the Rollover Shareholders) and declared it advisable for the Company to enter
into the Transactions, including the Merger, (b) authorized and approved the execution, delivery and performance of the Merger
Agreement, the Plan of Merger and the consummation of the Transactions, including the Merger, (c) directed that the Merger
Agreement, the Plan of Merger and the Transactions, including the Merger, be submitted to the shareholders of the Company for
authorization and approval, and (d) subject to the terms of the Merger Agreement, resolved to recommend the approval of the Merger
Agreement, the Plan of Merger and the Transactions, including the Merger, to the shareholders of the Company.
The Board unanimously recommends that you vote
FOR the proposal to authorize and approve the Merger Agreement, the Plan of Merger and the Transactions, including the Merger
and, upon the Merger becoming effective, the amendment and restatement of the memorandum and articles of association of the Company
(as the surviving company) in the form attached to the Plan of Merger, FOR the proposal to authorize each director or officer
of the Company to do all things necessary to give effect to the Merger Agreement, the Plan of Merger and the Transactions, including
the Merger, and FOR the proposal to adjourn the extraordinary general meeting in order to allow the Company to solicit additional
proxies in the event that there are insufficient proxies received at the time of the extraordinary general meeting to pass the
special resolutions to be proposed at the extraordinary general meeting.
Pursuant to the terms of a support agreement
(the “Support Agreement”), dated December 6, 2015, among BTG Hotels, Holdco, Poly Victory Investments Limited, a company
organized and existing under the laws of the British Virgin Islands (“Poly Victory”), Ctrip Travel Information Technology
(Shanghai) Co., Ltd., a limited liability company established and existing under the laws of the PRC (“Ctrip Shanghai”),
Neil Nanpeng Shen, co-founder, co-chairman of the Board, and an independent director of the Company (“Mr. Shen”),
Smart Master International Limited, a company organized and existing under the laws of the British Virgin Islands owned and controlled
by Mr. Shen and his spouse (“Smart Master”), Mr. David Jian Sun, the chief executive officer and a director of
the Company (“Mr. Sun”), Peace Unity Investments Limited, a company organized and existing under the laws of the British
Virgin Islands indirectly owned and controlled by Mr. Sun (“Peace Unity”), Jason Xiangxin Zong, the chief operating
officer of the Company (“Mr. Zong”), and Wise Kingdom Group Limited, a company organized and existing under the laws
of the British Virgin Islands (“Wise Kingdom”, together with, Poly Victory, Ctrip Shanghai, Mr. Shen, Smart Master,
Mr. Sun, Peace Unity, and Mr. Zong, the “Rollover Shareholders”), each of the Rollover Shareholders agrees (i) to
vote any and all of their Shares in favor of the authorization and approval of the Merger Agreement, the Plan of Merger and the
transaction contemplated by the Merger Agreement, including the Merger, and appoint 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 of the Merger, in each case, upon the terms and subject to the conditions of the Support Agreement. As of the date of the
accompanying proxy statement, the Rollover Shareholders collectively beneficially own approximately 34.5% of the Company’s
issued and outstanding Shares (excluding, for purposes of this calculation, Shares issuable to the Rollover Shareholders upon
the exercise of options of the Company).
Regardless of the number of Shares that you
own, your vote is very important. The Merger cannot be completed unless the Merger Agreement, the Plan of Merger and the Transactions,
including the Merger, are authorized and approved by (i) a special resolution (as defined in the Cayman Islands Companies Law),
which requires an affirmative vote of shareholders representing at least two-thirds of the Shares present and voting in person
or by proxy as a single class at the extraordinary general meeting of the Company’s shareholders, and (ii) so long as the
Shares (excluding the Shares held by the Rollover Shareholders) present and voting in person or by proxy at the extraordinary
general meeting of the Company’s shareholders exceed 50% of all of the issued and outstanding Shares of the Company as of
the close of business on the Share Record Date, the affirmative vote of holders of Shares representing more than 50% of the Shares
(excluding the Shares held by the Rollover Shareholders) present and voting in person or by proxy as a single class at such meeting
(the “Majority of Minority Vote Requirement”).
Assuming the Rollover Shareholders comply with
their voting undertakings under the Support Agreement, based on the number of Shares expected to be issued and outstanding and
entitled to vote on the Share Record Date, in order for the proposal to be authorized and approved:
| (a) | assuming all issued and outstanding Shares expected to
be issued and outstanding and entitled to vote at the meeting are present in person or
by proxy and voting at the meeting, at least 31,374,565 Shares other than the Shares held by
the Rollover Shareholders must be voted in favor of the special resolutions to be proposed
at the extraordinary general meeting, including the special resolution to approve the
Merger Agreement, the Plan of Merger and the Transactions, including the Merger; and |
| (b) | in order to satisfy the Majority of Minority Vote Requirement,
assuming all issued and outstanding Shares expected to be issued and outstanding and
entitled to vote at the meeting are present in person or by proxy and voting at the meeting,
at least 31,946,345 Shares held by the Company’s shareholders other than the Rollover
Shareholders must be voted in favor of the proposal to authorize and approve the Merger
Agreement, the Plan of Merger and the Transactions, including the Merger. |
Even if you plan to attend the extraordinary
general meeting in person, we request that you submit your proxy in accordance with the instructions set forth on the proxy card
as promptly as possible. To be valid, your proxy card must be completed, signed and returned to the Company’s principal
executive offices at No. 124 Caobao Road, Xuhui District, Shanghai 200235, People’s Republic of China, Attention: Ethan
Ruan, no later than March 23, 2016 at 10:00 a.m. (local time). The proxy card is the “instrument of proxy” as referred
to in the Company’s articles of association. Voting at the extraordinary general meeting will take place by poll voting
as the chairman of the Board has undertaken to demand poll voting at the meeting. Each shareholder has one vote for each Share
held as of the close of business in the Cayman Islands on the Share Record Date. If you receive more than one proxy card because
you own Shares that are registered in different names, please vote all of your Shares shown on each of your proxy cards in accordance
with the instructions set forth on the proxy card.
Completing the proxy card in accordance with
the instructions set forth on the proxy card will not deprive you of your right to attend the extraordinary general meeting and
vote your Shares in person. Please note, however, that if your Shares are registered in the name of a broker, bank or other nominee
and you wish to vote at the extraordinary general meeting in person, you must obtain from the record holder a proxy issued in
your name.
If you abstain from voting, fail to cast your
vote in person, fail to complete and return your proxy card in accordance with the instructions set forth on the proxy card, or
fail to give voting instructions to your broker, bank or other nominee, your vote will not be counted.
When proxies are properly dated, executed and
returned by holders of Shares, the Shares they represent will be voted at the extraordinary general meeting in accordance with
the instructions of the shareholders. If no specific instructions are given by such shareholders, such Shares will be voted “FOR”
the proposals as described above, unless you appoint a person other than the chairman of the meeting as proxy, in which case the
Shares represented by your proxy card will be voted (or not submitted for voting) as your proxy determines.
If you own ADSs as of the close of business
in New York City on February 23, 2016 (the “ADS Record Date”) (and do not cancel such ADSs and become a registered
holder of the Shares underlying such ADSs as explained below), you cannot vote at the extraordinary general meeting directly,
but you may instruct The Bank of New York Mellon, in its capacity as the ADS depositary (the “ADS Depositary”) and
the holder of the Shares underlying your ADSs, how to vote the Shares underlying your ADSs. The ADS Depositary must receive your
instructions no later than 5:00 p.m. (New York City time) on March 21,
2016 in order to ensure the Shares underlying your ADSs are properly voted at the extraordinary general meeting. If you hold your
ADSs in a brokerage, bank or other nominee account, you must rely on the procedures of the broker, bank or other nominee through
which you hold your ADSs if you wish to vote. Alternatively, if you own ADSs as of the close of business in New York City on the
ADS Record Date, you may vote at the extraordinary general meeting directly if you cancel your ADSs and become a registered holder
of the Shares underlying your ADSs prior to the close of business in the Cayman Islands on March 4, 2016, the Share Record Date.
If you wish to cancel your ADSs for the purpose of voting Shares directly, you need to make arrangements to deliver your ADSs
to the ADS Depositary for cancellation before the 5:00 p.m. (New York City time) on March 1, 2016 together with (a) delivery
instructions for the corresponding Shares (name and address of person who will be the registered holder of such Shares), (b) payment
of the ADS cancellation fees (US$0.05 for each ADS) to be cancelled pursuant to the terms of the Deposit Agreement, dated as of
October 31, 2006, among the Company, the ADS Depositary and the holders and beneficial owners of ADSs issued thereunder (the “Deposit
Agreement”) and any applicable taxes and (c) a certification that you either (i) held the ADSs as of the ADS Record
Date and have not given, and will not give, voting instructions to the ADS Depositary as to the ADSs being cancelled or have given
voting instructions to the ADS Depositary as to the ADSs being cancelled but undertake not to vote the corresponding Shares at
the extraordinary general meeting or (ii) did not hold the ADSs as of the ADS Record Date and undertakes not to vote the
corresponding Shares at the extraordinary general meeting. If you hold your ADSs in a brokerage, bank or other nominee account,
please contact your broker, bank or other nominee to find out what actions you need to take to instruct the broker, bank or other
nominee to cancel the ADSs on your behalf.
Shareholders who dissent from the Merger in
accordance with Section 238 of the Cayman Islands Companies Law will have the right to receive payment of the fair value
of their Shares if the Merger is completed, but only if they deliver to the Company, before the vote to authorize and approve
the Merger is taken at the extraordinary general meeting, a written objection to the Merger and subsequently comply with all procedures
and requirements of Section 238 of the Cayman Islands Companies Law for the exercise of dissenters’ rights, which is
attached as Annex D to the accompanying proxy statement. The fair value of their Shares as determined under the Cayman Islands
Companies Law could be more than, the same as or less than the merger consideration they would receive pursuant to the Merger
Agreement if they do not exercise dissenters’ rights with respect to their Shares.
ADS HOLDERS WILL NOT HAVE THE RIGHT TO
EXERCISE DISSENTERS’ RIGHTS AND RECEIVE PAYMENT OF THE FAIR VALUE OF THE SHARES UNDERLYING THEIR ADSs. THE ADS DEPOSITARY
WILL NOT ATTEMPT TO EXERCISE ANY DISSENTERS’ RIGHTS WITH RESPECT TO ANY OF THE SHARES THAT IT HOLDS, EVEN IF AN ADS HOLDER
REQUESTS THE ADS DEPOSITARY TO DO SO. ADS HOLDERS WISHING TO EXERCISE DISSENTERS’ RIGHTS MUST SURRENDER THEIR ADSs TO THE
ADS DEPOSITARY, PAY THE ADS DEPOSITARY’S FEES REQUIRED FOR THE CANCELLATION OF THEIR ADSs, PROVIDE INSTRUCTIONS FOR THE
REGISTRATION OF THE CORRESPONDING SHARES IN THE COMPANY’S REGISTER OF MEMBERS, CERTIFY THAT THEY HAVE NOT GIVEN, AND WILL
NOT GIVE, VOTING INSTRUCTIONS AS TO THEIR ADSs (OR, ALTERNATIVELY, THAT THEY WILL NOT VOTE THE CORRESPONDING SHARES) BEFORE 5:00
P.M. (NEW YORK CITY TIME) ON MARCH 1, 2016 AND BECOME REGISTERED HOLDERS OF SHARES BEFORE THE VOTE ON THE MERGER IS TAKEN AT THE
EXTRAORDINARY GENERAL MEETING. THEREAFTER, SUCH FORMER ADS HOLDERS MUST COMPLY WITH THE PROCEDURES AND REQUIREMENTS FOR EXERCISING
DISSENTERS’ RIGHTS WITH RESPECT TO THE SHARES UNDER SECTION 238 OF THE CAYMAN ISLANDS COMPANIES LAW. IF THE MERGER IS NOT
COMPLETED, THE COMPANY WOULD CONTINUE TO BE A PUBLIC COMPANY IN THE UNITED STATES AND ADSs WOULD CONTINUE TO BE LISTED ON NASDAQ.
SHARES ARE NOT LISTED AND CANNOT BE TRADED ON ANY STOCK EXCHANGE OTHER THAN NASDAQ, AND IN SUCH CASE ONLY IN THE FORM OF ADSs.
AS A RESULT, IF A FORMER ADS HOLDER HAS CANCELLED HIS, HER OR ITS ADSs TO EXERCISE DISSENTERS’ RIGHTS AND THE MERGER IS
NOT COMPLETED AND SUCH FORMER ADS HOLDER WISHES TO BE ABLE TO SELL HIS, HER OR ITS SHARES ON A STOCK EXCHANGE, SUCH FORMER ADS
HOLDER WOULD NEED TO DEPOSIT HIS, HER OR ITS SHARES INTO THE COMPANY’S ADS PROGRAM FOR THE ISSUANCE OF THE CORRESPONDING
NUMBER OF ADSs, SUBJECT TO THE TERMS AND CONDITIONS OF APPLICABLE LAW AND THE DEPOSIT AGREEMENT, INCLUDING, AMONG OTHER THINGS,
PAYMENT OF RELEVANT FEES OF THE ADS DEPOSITARY FOR THE ISSUANCE OF ADSs AND APPLICABLE SHARE TRANSFER TAXES (IF ANY) AND RELATED
CHARGES PURSUANT TO THE DEPOSIT AGREEMENT.
PLEASE DO NOT SEND YOUR SHARE CERTIFICATES
OR CERTIFICATES EVIDENCING ADSs AT THIS TIME. IF THE MERGER IS COMPLETED, YOU WILL BE SENT INSTRUCTIONS REGARDING THE SURRENDER
OF YOUR SHARE CERTIFICATES OR ADRs.
If you have any questions or need assistance
voting your Shares, please call MacKenzie Partners, Inc., the Company’s proxy solicitor, toll-free at 1-800-322-2885 (or
+1-212-929-5500 outside of the United States) (call collect) or via email at homeinns@mackenziepartners.com.
The Merger Agreement, the Plan of Merger and
the Transactions, including the Merger, are described in the accompanying proxy statement. Copies of the Merger Agreement and
the Plan of Merger are included as Annex A and Annex B, respectively, to the accompanying proxy statement. We urge you to read
the entire accompanying proxy statement carefully.
Notes:
| 1. | In the case of joint holders, the vote of the senior
holder who tenders a vote, whether in person or by proxy, will be accepted to the exclusion
of the votes of the joint holders. For this purpose, seniority will be determined by
the order in which the names stand in the register of members of the Company. |
| 2. | The instrument appointing a proxy must be in writing
under the hand of the appointer or of his or her attorney duly authorized in writing
or, if the appointer is a corporation, either under seal or under the hand of an officer
or attorney duly authorized. |
| 3. | A proxy need not be a member (registered shareholder)
of the Company. |
| 4. | The chairman of the extraordinary general meeting may
at his or her discretion direct that a proxy card will be deemed to have been duly deposited
where sent by email or telefax upon receipt of email or telefax confirmation that the
signed original thereof has been sent. A proxy card that is not deposited in the manner
permitted will be invalid. |
| 5. | Votes given in accordance with the terms of a proxy card
will be valid notwithstanding the previous death or insanity of the principal or revocation
of the proxy or of the authority under which the proxy was executed, or the transfer
of the Shares in respect of which the proxy is given, provided that no intimation in
writing of such death, insanity, revocation or transfer was received by the Company at
the principal executive offices of the Company at No. 124 Caobao Road, Xuhui District,
Shanghai 200235, People’s Republic of China at least two hours before the commencement
of the extraordinary general meeting, or adjourned meeting at which such proxy is used. |
|
BY
ORDER OF THE BOARD OF DIRECTORS, |
|
|
|
|
|
/s/
Yi Liu |
/s/ Neil
Nanpeng Shen |
|
Yi
Liu |
Neil Nanpeng
Shen |
|
Co-Chairman
of the Board |
Co-Chairman of
the Board |
|
February
23, 2016 |
February 23, 2016 |
PROXY STATEMENT
Dated February
23, 2016
SUMMARY
VOTING INSTRUCTIONS
Ensure that your shares of Homeinns Hotel
Group can be voted at the extraordinary general meeting by submitting your proxy or contacting your broker, bank or other nominee.
If your shares are registered in the
name of a broker, bank or other nominee: check the voting instruction card forwarded by your broker, bank or other nominee
to see which voting options are available or contact your broker, bank or other nominee in order to obtain directions as to how
to ensure that your shares are voted at the extraordinary general meeting.
If your shares are registered in your
name: submit your proxy as soon as possible by signing, dating and returning the accompanying proxy card in the enclosed
postage-paid envelope, so that your shares can be voted at the extraordinary general meeting unless you appoint a person other
than the chairman of the meeting as proxy, in which case the shares represented by your proxy card will be voted (or not submitted
for voting) as your proxy determines.
If you submit your proxy card without indicating
how you wish to vote, the shares represented by your proxy will be voted in favor of the resolutions to be proposed at the extraordinary
general meeting.
If your ADSs are registered in the name
of a broker, bank or other nominee: check the ADS voting instructions card forwarded by your broker, bank or other nominee
to see which voting options are available or contact your broker, bank or other nominee in order to obtain directions as to how
to ensure that the shares represented by your ADSs are voted at the extraordinary general meeting.
If your ADSs are registered in your name:
submit your ADS voting instructions card as soon as possible by signing, dating and returning the enclosed ADS voting instructions
card in the enclosed postage-paid envelope, so that the shares represented by your ADSs can be voted at the extraordinary general
meeting on behalf of the ADS Depositary, as the registered holder of the shares represented by your ADSs.
If you have any questions or need assistance
voting your Shares, please call MacKenzie Partners, Inc., the Company’s proxy solicitor, toll-free at 1-800-322-2885 (or
+1-212-929-5500 outside of the United States) (call collect) or via email at homeinns @mackenziepartners.com.
TABLE OF CONTENTS
SUMMARY
TERM SHEET
This “Summary Term Sheet” and
the “Questions and Answers About the Extraordinary General Meeting and the Merger” highlight selected information
contained in this proxy statement regarding the Merger (as defined below) and may not contain all of the information that may
be important to your consideration of the Merger and other transactions contemplated by the Merger Agreement (as defined below).
You should carefully read this entire proxy statement and the other documents to which this proxy statement refers for a more
complete understanding of the matters being considered at the extraordinary general meeting. In addition, this proxy statement
incorporates by reference important business and financial information about the Company. You are encouraged to read all of the
documents incorporated by reference into this proxy statement and you may obtain such information without charge by following
the instructions in “Where You Can Find More Information” beginning on page 109. In this proxy statement, the terms
“the Company,” “us,” “we” or other terms correlative thereto refer to Homeinns Hotel Group.
All references to “dollars” and “US$” in this proxy statement are to U.S. dollars, and all references
to “RMB” in this proxy statement are to Renminbi, the lawful currency of the People’s Republic of China (the
“PRC”).
The Parties Involved in the Merger
The Company
We are a leading economy hotel chain in China,
based on the number of our hotels, the number of our hotel rooms and the geographic coverage of our hotel chain. We develop and
operate hotels across China under our Homeinn, Homeinn Plus, Motel, Yitel and Fairyland brands. Since we commenced operations
in 2002, we have become one of the best-known economy hotel chains in China. We offer a consistent product and high-quality services
to serve primarily the fast growing population of value-conscious individual business and leisure travelers who demand clean,
comfortable and convenient lodging.
We are an exempted company with limited liability
incorporated under the laws of the Cayman Islands. Our principal executive offices are located at No. 124 Caobao Road, Xuhui District,
Shanghai 200235, People’s Republic of China. Our telephone number at this address is +86 21 3337-3333 and our fax number
is +86 21 6483-5661.
For a description of our history, development,
business and organizational structure, see our Annual Report on Form 20-F for the year ended December 31, 2014, filed with
the United States Securities and Exchange Commission (the “SEC”) on April 24, 2015, which is incorporated herein
by reference. See “Where You Can Find More Information” beginning on page 109 for a description of how to obtain a
copy of our Annual Report.
BTG Hotels
BTG Hotels (Group) Co., Ltd. (“BTG Hotels”
or “Parent”) is a joint stock company established and existing under the laws of the PRC. BTG Hotels is listed on
the Shanghai Stock Exchange and principally engaged in the management of hotels and tourism destinations. The business address
of 51 Fuxingmen Avenue, Xicheng District, Beijing 100031, People’s Republic of China.
Holdco
BTG Hotels Group (HONGKONG) Holdings Co., Limited
(“Holdco”) is a company incorporated under the laws of the Hong Kong Special Administrative Region (“Hong Kong”)
and a wholly owned subsidiary of BTG Hotels. Holdco is a holding company formed solely for the purpose of holding the equity interest
in Merger Sub (as defined below) and arranging the related financing transactions in connection with the Merger (as defined below).
The business address of Holdco is c/o BTG Hotels (Group) Co., Ltd., 51 Fuxingmen Avenue, Xicheng District, Beijing 100031, People’s
Republic of China.
Merger Sub
BTG Hotels Group (CAYMAN) Holding Co., Ltd
is an exempted company with limited liability incorporated under the laws of the Cayman Islands and a wholly owned subsidiary
of Holdco (“Merger Sub”). Merger Sub was formed by Holdco solely for the purpose of effecting the Merger (as defined
below). The business address of Merger Sub is c/o BTG Hotels (Group) Co., Ltd., 51 Fuxingmen Avenue, Xicheng District, Beijing
100031, People’s Republic of China.
Beijing Tourism Group Co., Ltd.
Beijing Tourism Group Co., Ltd. (“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.
BTG holds a 60.12% equity interest in BTG Hotels. The principal business address of BTG is No. 10 Yabao Road, Chaoyang District,
Beijing 100020, People’s Republic of China.
Poly Victory Investments Limited
Poly Victory Investments Limited is a British
Virgin Islands business company with limited liability (“Poly Victory”) and a wholly owned subsidiary of BTG. The
business address of Poly Victory is Room 3406, Bank of America Tower, 12 Harcourt Road, Central, Hong Kong.
Ctrip Travel Information Technology (Shanghai) Co., Ltd.
Ctrip Travel Information Technology (Shanghai)
Co., Ltd. (“Ctrip Shanghai”) is a company established and existing under the laws of the PRC and is principally engaged
in the research, development and provision of travel software and related information and technology consulting services. Ctrip
Shanghai is indirectly wholly owned and controlled by Ctrip.com International, Ltd. (“Ctrip”), a leading travel service
provider of accommodation reservation, transportation ticketing, packaged tours and corporate travel management in China. The
business address of Ctrip Shanghai is c/o 968 Jin Zhong Road, Shanghai 200335, People’s Republic of China.
Mr. Neil Nanpeng Shen
Mr. Neil Nanpeng Shen (“Mr. Shen”)
is our co-founder, co-chairman of the board of directors, and one of our independent directors. Mr. Shen has been our company’s
director since our inception and our independent director since 2007. Mr. Shen is a permanent resident of the Hong Kong Special
Administrative Region. The business address of Mr. Shen is c/o Suite 3613, 36/F, Two Pacific Place, 88 Queensway, Hong Kong.
During the last five years, Mr. Shen has
not been (a) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (b) a party
to any judicial or administrative proceeding (except for matters that were dismissed without sanction or settlement) that resulted
in a judgment, decree or final order enjoining Mr. Shen from future violations of, or prohibiting activities subject to,
federal or state securities laws, or a finding of any violation of federal or state securities laws.
Smart Master International Limited
Smart Master International Limited (“Smart
Master”), a business company with limited liability incorporated under the laws of the British Virgin Islands, is owned
and controlled by Mr. Shen and his spouse. The business address of Smart Master is c/o Suite 3613, 36/F, Two Pacific Place, 88
Queensway, Hong Kong.
Mr. David Jian Sun
Mr. David Jian Sun (“Mr. Sun”)
is our chief executive officer and one of our directors. Mr. Sun has served as our director and chief executive officer since
2004. Mr. Sun is a PRC citizen. The business address of Mr. Sun is c/o No. 124 Caobao Road, Xuhui District, Shanghai 200235, People’s
Republic of China.
During the last five years, Mr. Sun has
not been (a) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (b) a party
to any judicial or administrative proceeding (except for matters that were dismissed without sanction or settlement) that resulted
in a judgment, decree or final order enjoining Mr. Sun from future violations of, or prohibiting activities subject to, federal
or state securities laws, or a finding of any violation of federal or state securities laws.
Peace Unity Investments Limited
Peace Unity Investments Limited (“Peace
Unity”), a business company with limited liability incorporated under the laws of the British Virgin Islands, is indirectly
wholly owned and controlled by Mr. Sun. The business address of Peace Unity is c/o No. 124 Caobao Road, Xuhui District, Shanghai
200235, People’s Republic of China.
Jason Xiangxin Zong
Jason Xiangxin Zong (“Mr. Zong”)
is our president and chief operating officer. Mr. Zong has been our president and chief operating officer since January 2014 and
served as our chief operating officer from 2008 through 2013. Mr. Zong is a PRC citizen. The business address of Mr. Zong is c/o No.
124 Caobao Road, Xuhui District, Shanghai 200235, People’s Republic of China.
During the last five years, Mr. Zong has
not been (a) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (b) a party
to any judicial or administrative proceeding (except for matters that were dismissed without sanction or settlement) that resulted
in a judgment, decree or final order enjoining Mr. Zong from future violations of, or prohibiting activities subject to,
federal or state securities laws, or a finding of any violation of federal or state securities laws.
James Jianzhang Liang
Mr. James Jianzhang Liang (“Mr. Liang”)
is co-founder and independent director of the Company. Mr. Liang has been our director since its inception and is co-founder,
chairman of the board of directors and chief executive officer of Ctrip. Mr. Liang is a citizen of Saint Kitts and Nevis. The
business address of Mr. Liang is c/o 968 Jin Zhong Road, Shanghai 200335, People’s Republic of China.
During the last five years, Mr. Liang has
not been (a) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (b) a party to any judicial
or administrative proceeding (except for matters that were dismissed without sanction or settlement) that resulted in a judgment,
decree or final order enjoining Mr. Liang from future violations of, or prohibiting activities subject to, federal or state securities
laws, or a finding of any violation of federal or state securities laws.
Wise Kingdom Group Limited
Wise Kingdom Group Limited (“Wise Kingdom”),
a business company with limited liability incorporated under the laws of the British Virgin Islands, is wholly owned and controlled
by Ms. Chung Lau (“Ms. Lau”), the spouse of Mr. Liang. The business address of Wise Kingdom is c/o 968 Jin Zhong Road,
Shanghai 200335, People’s Republic of China.
Throughout this proxy statement, Poly Victory,
Ctrip Shanghai, Mr. Shen, Smart Master, Mr. Sun, Peace Unity, Mr. Zong and Wise Kingdom are collectively referred to as the “Rollover
Shareholders,” BTG Hotels, Holdco, Merger Sub, BTG, Mr. Liang and the Rollover Shareholders are collectively referred to
as the “Buyer Group,” and BTG Hotels, Poly Victory, Ctrip, Mr. Shen, Mr. Liang and Ms. Sun are collectively referred
to as the “Proposal Parties.” Additional information regarding the parties to the Merger (as defined below) is set
forth in Annex F, which is attached hereto and incorporated herein by reference.
The Merger Agreement (Page 83)
The Company entered into an agreement and plan
of merger (the “Merger Agreement”), dated as of December 6, 2015, with Holdco, Merger Sub, and solely for the purposes
of certain sections thereof, BTG Hotels. Pursuant to the Merger Agreement, Merger Sub will be merged with and into the Company
(the “Merger”), with the Company continuing as the surviving company (the “surviving company”).
You are being asked to vote upon, among other
proposals, a proposal to authorize and approve the Merger Agreement, the plan of merger required to be filed with the Registrar
of Companies of the Cayman Islands (the “Cayman Registrar”) in connection with the Merger (the “Plan of Merger”),
and the transactions contemplated by the Merger Agreement and the Plan of Merger (collectively, the “Transactions”),
including the Merger.
Pursuant to the terms of the Merger Agreement,
once the Merger Agreement, the Plan of Merger, and the Transactions, including the Merger, are authorized and approved by the
requisite vote of the shareholders of the Company and the other conditions to completion of the Merger are satisfied or waived
in accordance with the terms of the Merger Agreement, the following will occur:
| · | the Company
will file the Plan of Merger with the Cayman Registrar and the Merger will be effective
on the date specified in the Plan of Merger; and |
| · | the surviving
company will be beneficially owned by Holdco and the Rollover Shareholders. |
Following completion and as a result of the Merger:
| · | the Company,
as the surviving company, will continue to do business under the name “Homeinns
Hotel Group”; and |
| · | the Company’s
American depositary shares program (“ADS program”) for the Shares will be
terminated and ADSs will cease to be listed on the NASDAQ Global Market (“NASDAQ”),
and price quotations with respect to sales of ADSs in the public market will no longer
be available. |
Copies of the Merger Agreement and the Plan
of Merger are attached as Annex A and Annex B, respectively, to this proxy statement. You should read the Merger Agreement and
the Plan of Merger in their entirety because they, and not this proxy statement, are the legal documents that govern the Merger.
Merger Consideration (Page 83)
Under the terms of the Merger Agreement, at
the effective time of the Merger (the “Effective Time”), each Share issued and outstanding immediately prior to the
Effective Time, other than the Rollover Shares, the Excluded Shares, and the Dissenting Shares, each as described below, will
be cancelled and cease to exist and will be converted into and exchanged for the right to receive US$17.90 per Share (the “Per
Share Merger Consideration”) and each ADS issued and outstanding immediately prior to the Effective Time, other than ADSs
representing Rollover Shares or Excluded Shares, will represent the right to surrender the ADS in exchange for US$35.80 per ADS
(the “Per ADS Merger Consideration”) (less cancellation fees of US$0.05 per ADS pursuant to the terms of the Deposit
Agreement, dated as of October 31, 2006, among the Company, The Bank of New York Mellon, in its capacity as the ADS depositary
(the “ADS Depositary”), and the holders and beneficial owners of ADSs issued thereunder (the “Deposit Agreement”)),
in each case, in cash, without interest and net of any applicable withholding taxes. If the Merger is completed, the following
Shares (including Shares represented by ADSs) will be cancelled and cease to exist at the Effective Time but will not be converted
into the right to receive the consideration described in the immediately preceding sentence:
| (a) | each of 13,446,959 Shares and 1,279,206 Shares represented
by ADSs held by Poly Victory, 14,400,765 Shares held by Ctrip Shanghai, 375,500 Shares
held by Mr. Shen, 3,275,389 Shares and 183,356 Shares represented by ADSs held by Smart
Master, 30,138 Shares held by Mr. Sun, 228,806 Shares held by Peace Unity, 74,272
Shares and 10,000 Shares represented by ADSs held by Mr. Zong, and 317,294 Shares represented
by ADSs held by Wise Kingdom (collectively, the “Rollover Shares”), issued
and outstanding immediately prior to the Effective Time will be converted into and become
one validly issued, fully paid and non-assessable ordinary share, par value US$0.005
each, of the surviving company; |
| (b) | each of (i) the Shares held by the Company or any of
its subsidiaries and (ii) the Shares (including ADSs representing such Shares) held by
the ADS Depositary and reserved for issuance and allocation pursuant to the Company’s
Amended and Restated 2006 Share Incentive Plan (the “Share Incentive Plan”)
(collectively, the “Excluded Shares”), and ADSs representing the Excluded
Shares, in each case, issued and outstanding immediately prior to the Effective Time,
will be cancelled and cease to exist without payment of any consideration or distribution
therefor; and |
| (c) | each of the Shares that are issued and outstanding
immediately prior to the Effective Time and held by shareholders who have validly exercised
and not effectively withdrawn or lost their right to dissent from the Merger in accordance
with the Cayman Islands Companies Law (2013 Revision) (the “Cayman Islands
Companies Law”) (collectively, the “Dissenting Shares”), will be cancelled
and each holder thereof will be entitled to receive only the payment of the fair value
of such Dissenting Shares held by them in accordance with the Cayman Islands Companies
Law. |
At the Effective Time, each ordinary share,
par value US$0.0005 per share, of Merger Sub issued and outstanding immediately prior to the Effective Time will be converted
into one validly issued, fully paid and non-assessable ordinary share, par value US$0.005 per share, of the surviving company.
Treatment of Share Options (Page 84)
At the Effective Time, (i) each option
to purchase Shares granted under the Share Incentive Plan that is issued and outstanding immediately prior to the Effective Time
and shall have become vested on or prior to the Effective Time will be cancelled and converted into the right to receive, as soon
as practicable after the Effective Time, an amount equal to the product of (a) the total number of Shares issuable under
such option immediately prior to the Effective Time multiplied by (b) the excess of US$17.90 over the exercise price payable
per Share under such option, if any, in cash, without interest and net of any applicable withholding taxes, and (ii) except as
provided under the arrangement with respect to options held by certain directors, officers and employees of the Company described
below, each option to purchase Shares granted under the Share Incentive Plan that is issued and outstanding immediately prior
to the Effective Time and shall not have become vested on or prior to the Effective Time will be cancelled and converted into
the right to receive a restricted cash award subject to the same vesting conditions and schedules applicable to such option, as
soon as practicable after the Effective Time, in an amount equal to the product of (a) the total number of Shares issuable
under such option immediately prior to the Effective Time multiplied by (b) the excess of US$17.90 over the exercise price
payable per Share under such option, if any, in cash, without interest and net of any applicable withholding taxes. In the case
that the exercise price per Share of any option is not lower than US$17.90, such option will be cancelled for no consideration.
The restricted cash awards which (i) would
vest within two (2) years after the Effective Time and are issued to certain directors, officers and employees of the Company
who have executed and delivered to BTG Hotels and Holdco, prior to the closing of the Merger, a letter agreement relating to certain
confidentiality, non-competition and employment undertakings (the “Selected Key Employees”), (ii) would vest within
two (2) years after the Effective Time and are issued to Yi Liu, Mr. Shen, Min Bao, Mr. Liang and Yunxin Mei, a former director
of the Company appointed by Poly Victory to the Board (collectively, the “Buyer Group Directors”), and (iii) are issued
to the members of the Special Committee, in each case, will be fully vested and payable when issued, and the surviving company
will pay all amounts owed under such restricted cash awards to the holders thereof as soon as practicable after closing of the
Merger.
At
the Effective Time, the Share Incentive Plan and all relevant award agreements applicable to the Share Incentive Plan will
be terminated. In addition, each option, whether or not vested, and restricted share unit that is outstanding and unexercised,
at the Effective Time will be cancelled.
Treatment of Restricted Share Units (Page 84)
At the Effective Time, except as provided under
the arrangement with respect to restricted share units held by certain directors, officers and employees of the Company described
below, each restricted share unit awarded under the Share Incentive Plan immediately prior to the Effective Time will be cancelled
and converted into the right to receive a restricted cash award subject to the same vesting conditions and schedules applicable
to such restricted share unit, as soon as practicable after the Effective Time, in an amount equal to the product of (a) US$17.90
and (b) the total number of Shares underlying such restricted share unit, without interest and net of any applicable withholding
taxes. In the case that the exercise price per Share of any option is not lower than US$17.90, such option will be cancelled for
no consideration.
The restricted cash awards which (i) would
vest within two (2) years after the Effective Time and are issued to the Selected Key Employees, (ii) would vest within two (2)
years after the Effective Time and are issued to the Buyer Group Directors, and (iii) are issued to the members of the Special
Committee, in each case, will be fully vested and payable when issued, and the surviving company will pay all amounts owed under
such restricted cash awards to the holders thereof as soon as practicable after closing of the Merger.
Record Date and Voting Information (Page 77)
You are entitled to attend and vote at the
extraordinary general meeting if you have Shares registered in your name at the close of business in the Cayman Islands on March
4, 2016, the record date for voting Shares at the extraordinary general meeting (the “Share Record Date”). If you
own Shares at the close of business in the Cayman Islands on the Share Record Date, the deadline for you to lodge your proxy card
and vote is March 23, 2016 at 10:00 a.m. (Shanghai
time).
If you own ADSs as of the close of business
in New York City on February 23, 2016 (the “ADS Record Date”) (and do not cancel such ADSs and become a registered
holder of the Shares underlying such ADSs, as explained below), you cannot vote directly nor are you able to attend the extraordinary
general meeting, but you may instruct the ADS Depositary (as the holder of the Shares underlying your ADSs) on how to vote the
Shares underlying your ADSs. The ADS Depositary must receive your instructions no later than 5:00 p.m. (New York City time) on
March 21, 2016 in order to ensure the Shares underlying your ADSs are properly voted at the extraordinary general meeting.
Alternatively, you may vote at the extraordinary
general meeting if you cancel your ADSs by the close of business in New York City on March 1, 2016 and become a holder of Shares
by the close of business in the Cayman Islands on the Share Record Date. In addition, if you hold your ADSs through a broker,
bank or nominee, you must rely on the procedures of the financial intermediary through which you hold your ADSs if you wish to
vote at the extraordinary general meeting.
Each outstanding Share on the Share
Record Date entitles the holder to one vote on each matter submitted to the shareholders for authorization and approval at
the extraordinary general meeting and any adjournment thereof. We expect that, as of the Share Record Date, there will be
97,554,374 Shares entitled to be voted at the extraordinary general meeting.
Shareholder Vote Required to Approve the Merger Agreement and
the Plan of Merger (Page 78)
The Merger cannot be completed unless the Merger
Agreement, the Plan of Merger and the Transactions, including the Merger, are authorized and approved by (i) a special resolution
(as defined in the Cayman Islands Companies Law), which requires an affirmative vote of shareholders representing at least two-thirds
of the Shares present and voting in person or by proxy as a single class at the extraordinary general meeting of the Company’s
shareholders, and (ii) so long as the Shares (excluding the Shares held by the Rollover Shareholders) present and voting
in person or by proxy at the extraordinary general meeting of the Company’s shareholders exceed 50% of all of the issued
and outstanding Shares of the Company as of the close of business on the Share Record Date, the affirmative vote of holders of
Shares representing more than 50% of the Shares (excluding the Shares held by the Rollover Shareholders) present and voting in
person or by proxy as a single class at such meeting (the “Majority of Minority Vote Requirement”).
As of the date of this proxy statement, the
Rollover Shareholders collectively beneficially own an aggregate of 33,661,685 Shares, which represents approximately 34.5% of
the total issued and outstanding Shares (excluding, for purposes of this calculation, Shares issuable to the Rollover Shareholders
upon the exercise of options of the Company). Pursuant to the terms of the Support Agreement, these Shares will be voted in favor
of the authorization and approval of the Merger Agreement, the Plan of Merger and the Transactions, including the Merger, at the
extraordinary general meeting.
Assuming the Rollover Shareholders comply with
their voting undertakings under the Support Agreement, based on the number of Shares expected to be issued and outstanding and
entitled to vote as of the close of business in the Cayman Islands on the Share Record Date, in order for the proposal to be authorized
and approved:
| (a) | assuming all issued and outstanding Shares expected to
be issued and outstanding and entitled to vote at the meeting are present in person or
by proxy and voting at the meeting, at least 31,374,565 Shares other than the Shares held by
the Rollover Shareholders must be voted in favor of the special resolutions to be proposed
at the extraordinary general meeting, including the special resolution to approve the
Merger Agreement, the Plan of Merger and the Transactions, including the Merger; and |
| (b) | in order to satisfy the Majority of Minority Vote Requirement,
assuming all issued and outstanding Shares expected to be issued and outstanding and
entitled to vote at the meeting are present in person or by proxy and voting at the meeting,
at least 31,946,345 Shares held by the Company’s shareholders other than the Rollover
Shareholders must be voted in favor of the proposal to authorize and approve the Merger
Agreement, the Plan of Merger and the Transactions, including the Merger. |
Support Agreement (Annex E)
On December 6, 2015, BTG Hotels, Holdco and
the Rollover Shareholders entered into a support agreement (the “Support Agreement”), pursuant to which each of the
Rollover Shareholders agrees, upon the terms and subject to the conditions of the Support Agreement, (i) to vote any and all of
their Shares in favor of the authorization and approval of the Merger Agreement, the Plan of Merger and the Transactions, including
the Merger, and to appoint 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. As of the date of this proxy statement, the Rollover Shareholders
collectively beneficially own approximately 34.5% of the Company’s issued and outstanding Shares (excluding, for purposes
of this calculation, Shares issuable to the Rollover Shareholders upon the exercise of options of the Company).
Dissenters’ Rights (Page 99)
Shareholders who elect to dissent from the
Merger will have the right to receive payment of the fair value of their Shares if the Merger is completed, but only if they deliver
to the Company, before the vote is taken, a written objection to the Merger and subsequently comply with all procedures and requirements
of Section 238 of the Cayman Islands Companies Law for the exercise of dissenters’ rights. The fair value of their Shares
as determined under the Cayman Islands Companies Law could be more than, the same as, or less than the merger consideration they
would receive pursuant to the Merger Agreement if they do not exercise dissenters’ rights with respect to their Shares.
ADS HOLDERS WILL
NOT HAVE THE RIGHT TO EXERCISE DISSENTERS’ RIGHTS AND RECEIVE PAYMENT OF THE FAIR VALUE OF THE SHARES UNDERLYING THEIR ADSs.
THE ADS DEPOSITARY WILL NOT ATTEMPT TO EXERCISE ANY DISSENTERS’ RIGHTS WITH RESPECT TO ANY OF THE SHARES THAT IT HOLDS,
EVEN IF AN ADS HOLDER REQUESTS THE ADS DEPOSITARY TO DO SO. ADS HOLDERS WISHING TO EXERCISE DISSENTERS’ RIGHTS MUST SURRENDER
THEIR ADSs TO THE ADS DEPOSITARY, PAY THE ADS DEPOSITARY’S FEES REQUIRED FOR THE CANCELLATION OF THEIR ADSs, PROVIDE INSTRUCTIONS
FOR THE REGISTRATION OF THE CORRESPONDING SHARES IN THE COMPANY’S REGISTER OF MEMBERS, CERTIFY THAT THEY HAVE NOT GIVEN,
AND WILL NOT GIVE, VOTING INSTRUCTIONS AS TO THEIR ADSs (OR, ALTERNATIVELY, THAT THEY WILL NOT VOTE THE CORRESPONDING SHARES)
BEFORE 5:00 P.M. (NEW YORK CITY TIME) ON MARCH 1, 2016 AND BECOME REGISTERED HOLDERS OF SHARES BEFORE THE VOTE ON THE MERGER IS
TAKEN AT THE EXTRAORDINARY GENERAL MEETING. THEREAFTER, SUCH FORMER ADS HOLDERS MUST COMPLY WITH THE PROCEDURES AND REQUIREMENTS
FOR EXERCISING DISSENTERS’ RIGHTS WITH RESPECT TO THE SHARES UNDER SECTION 238 OF THE CAYMAN ISLANDS COMPANIES LAW. IF THE
MERGER IS NOT COMPLETED, THE COMPANY WOULD CONTINUE TO BE A PUBLIC COMPANY IN THE UNITED STATES AND ADSs WOULD CONTINUE TO BE
LISTED ON NASDAQ. SHARES ARE NOT LISTED AND CANNOT BE TRADED ON ANY STOCK EXCHANGE OTHER THAN NASDAQ, AND IN SUCH CASE ONLY IN
THE FORM OF ADSs. AS A RESULT, IF A FORMER ADS HOLDER HAS CANCELLED HIS, HER OR ITS ADSs TO EXERCISE DISSENTERS’ RIGHTS
AND THE MERGER IS NOT COMPLETED AND SUCH FORMER ADS HOLDER WISHES TO BE ABLE TO SELL HIS, HER OR ITS SHARES ON A STOCK EXCHANGE,
SUCH FORMER ADS HOLDER WOULD NEED TO DEPOSIT HIS, HER OR ITS SHARES INTO THE COMPANY’S ADS PROGRAM FOR THE ISSUANCE OF THE
CORRESPONDING NUMBER OF ADSs, SUBJECT TO THE TERMS AND CONDITIONS OF APPLICABLE LAW AND THE DEPOSIT AGREEMENT, INCLUDING, AMONG
OTHER THINGS, PAYMENT OF RELEVANT FEES OF THE ADS DEPOSITARY FOR THE ISSUANCE OF ADSs AND APPLICABLE SHARE TRANSFER TAXES (IF
ANY) AND RELATED CHARGES PURSUANT TO THE DEPOSIT AGREEMENT.
We encourage you to read the section of this
proxy statement entitled “Dissenters’ Rights” as well as Annex D to this proxy statement carefully and to consult
your Cayman Islands legal counsel if you desire to exercise your dissenters’ rights.
Purposes and Effects of the Merger (Page 57)
The purpose of the Merger is to enable the
Buyer Group to acquire 100% control of the Company in a transaction in which the holders of Shares (other than the Rollover Shares,
the Excluded Shares, and the Dissenting Shares) and ADSs (other than ADSs representing Rollover Shares or Excluded Shares) will
be cashed out in exchange for the Per Share Merger Consideration or the Per ADS Merger Consideration, as applicable. See “Special
Factors—Purposes of and Reasons for the Merger” beginning on page 57 for additional information.
ADSs representing Shares are currently listed
on NASDAQ under the symbol “HMIN.” It is expected that, following the consummation of the Merger, the Company will
cease to be a publicly traded company and will instead become a private company beneficially owned by Holdco and the Rollover
Shareholders. Following the completion of the Merger, ADSs will cease to be listed on any securities exchange or quotation system,
including NASDAQ, and price quotations with respect to sales of the ADSs in the public market will no longer be available. In
addition, registration of the ADSs and the underlying Shares under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) may be terminated upon the Company’s application to the SEC if the Shares are not listed on a national securities
exchange and there are fewer than 300 record holders of Shares. Ninety days after the filing of Form 15 in connection with the
completion of the Merger, or such shorter period as may be determined by the SEC, registration of the ADSs and the underlying
Shares under the Exchange Act will be terminated and the Company will no longer be required to file periodic reports with the
SEC or otherwise be subject to the U.S. federal securities laws, including the Sarbanes-Oxley Act of 2002, applicable to public
companies. Following the completion of the Merger, the Company’s shareholders will no longer enjoy the rights or protections
that the U.S. federal securities laws provide, including reporting obligations for directors, officers and principal securities
holders of the Company. Furthermore, following the completion of the Merger, the ADS program will terminate. See “Special
Factors—Effects of the Merger on the Company” beginning on page 58 for additional information.
Plans for the Company after the Merger (Page 61)
Following the completion of the Merger, the
Buyer Group anticipates that the Company will continue to conduct its operations substantially as they are currently being conducted,
except that it will cease to be an independently public traded company and will instead be beneficially owned by the Buyer Group.
Recommendations of the Special Committee and the Board (Page
38)
A special committee of the board of directors
of the Company (the “Board”) composed solely of directors who are unaffiliated with any member of the Buyer Group
or any member of the management of the Company (the “Special Committee”) reviewed and considered the terms and conditions
of the Merger Agreement, the Plan of Merger and the Transactions, including the Merger. The Special Committee, after consultation
with its financial advisor and legal counsel and due consideration, unanimously (a) determined that the Merger Agreement, the
Plan of Merger and the Transactions, including the Merger, on the terms and subject to the conditions set forth in the Merger
Agreement, are fair to and in the best interest of the Company and its shareholders (other than shareholders who are affiliates
of the Company, including the Rollover Shareholders) (such shareholders are referred to herein as the “Unaffiliated Security
Holders”), (b) declared it advisable for the Company to enter into the Merger Agreement, the Plan of Merger and the
Transactions, including the Merger, and (c) recommended that the Board authorize and approve the Merger Agreement, the Plan
of Merger and the Transactions, including the Merger.
The Board, acting upon the unanimous recommendation
of the Special Committee and after each director duly disclosed his interests in the Transactions, including the Merger, as required
by the memorandum and articles of associations of the Company as amended to date and Cayman Islands Companies Law, unanimously
(a) determined that the Merger Agreement, the Plan of Merger and the Transactions, including the Merger, on the terms and subject
to the conditions set forth in the Merger Agreement, are fair to, and in the best interests of, the Company and its Unaffiliated
Security Holders and declared it advisable for the Company to enter into the Transactions, including the Merger, (b) authorized
and approved the execution, delivery and performance of the Merger Agreement, the Plan of Merger and the consummation of the Transactions,
including the Merger, (c) directed that the Merger Agreement, the Plan of Merger and the Transactions, including the Merger, be
submitted to the shareholders of the Company for authorization and approval , and (d) subject to the terms of the Merger Agreement,
resolved to recommend the approval of the Merger Agreement, the Plan of Merger and the Transactions, including the Merger, to
the shareholders of the Company.
Accordingly, the Board unanimously recommends
that you vote FOR the proposal to authorize and approve the Merger Agreement, the Plan of Merger and the Transactions, including
the Merger and, upon the Merger becoming effective, the amendment and restatement of the memorandum and articles of association
of the Company (as the surviving company) in the form attached to the Plan of Merger, FOR the proposal to authorize each director
or officer of the Company to do all things necessary to give effect to the Merger Agreement, the Plan of Merger and the Transactions,
including the Merger, and FOR the proposal to adjourn the extraordinary general meeting in order to allow the Company to solicit
additional proxies in the event that there are insufficient proxies received at the time of the extraordinary general meeting
to pass the special resolutions to be proposed at the extraordinary general meeting.
For a detailed discussion of the material factors
considered by the Special Committee and the Board in determining to recommend the approval of the Merger Agreement, the Plan of
Merger and the Transactions, including the Merger, and in determining that the Merger Agreement, the Plan of Merger and the Transactions,
including the Merger, on the terms and subject to the conditions set forth in the Merger Agreement, are fair to and in the best
interest of the Company and the Unaffiliated Security Holders, see “Special Factors—Reasons for the Merger and Recommendation
of the Special Committee and the Board” beginning on page 38 and “Special Factors—Effects of the Merger on the
Company—Primary Benefits and Detriments of the Merger” beginning on page 59. The foregoing summary is qualified in
its entirety by reference to these sections.
Position of the Buyer Group as
to Fairness of the Merger (Page 42)
Each member of the Buyer Group believes that
the Merger is fair to the Company’s Unaffiliated Security Holders, both substantively and procedurally. Their belief is
based upon the factors discussed under “Special Factors—Position of the Buyer Group as to Fairness of the Merger”
beginning on page 42.
Each member of the Buyer Group is making the
statements included in this paragraph solely for the purpose of complying with the requirements of Rule 13e-3 and related rules
under the Exchange Act. The Buyer Group’s views as to the fairness of the Merger are not intended to be and should not be
construed as a recommendation to any shareholder of the Company as to how that shareholder should vote on the proposal to authorize
and approve the Merger Agreement, the Plan of Merger and the Transactions, including the Merger.
Financing of the Merger (Page 62)
The Company and the Buyer Group
estimate that the total amount of funds necessary to complete the Merger and the related Transactions, including the payment
of the merger consideration to the shareholders and holders of ADSs (other than the Rollover Shareholders) and holders of
Company equity awards pursuant to the Merger Agreement and fees and expenses in connection with the Merger, is anticipated to
be approximately US$ 1.2 billion.
The Buyer Group expects to provide this amount
through the proceeds from a committed senior secured term loan facility contemplated by a debt commitment letter, dated December
6, 2015 (the “Debt Commitment Letter”), by and among Parent, Holdco and Industrial and Commercial Bank of China Limited,
New York Branch (the “Lead Arranger”). Under the terms and subject to the conditions of the Debt Commitment Letter,
the Lead Arranger has committed to arrange and provide a senior secured term loan facility of up to US$1.2 billion in principal
amount for Holdco to consummate the Merger. See “Special Factors—Financing of the Merger” beginning on page
62 for additional information.
Consortium Agreement
On December 6, 2015, the Proposal Parties entered
into a consortium agreement, dated December 6, 2015 (the “Consortium Agreement”), pursuant to which the Proposal Parties
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) cooperate and proceed in good faith to negotiate and (iii) cooperate
in appointing legal, financial and other advisors, in each case, to undertake a transaction to acquire the Company, which would
result in a delisting of the Company from NASDAQ and deregistering the Shares of the Company under the Exchange Act.
Opinions of the Special Committee’s Financial Advisor
(Page 50)
On December 5, 2015, Credit Suisse Securities
(USA) LLC (“Credit Suisse”) delivered its oral opinion, subsequently confirmed in writing to the Special Committee,
to the effect that, as of December 5, 2015 and subject to the limitations, qualifications and assumptions set forth therein, each
of the Per Share Merger Consideration and the Per ADS Merger Consideration to be received by the shareholders and holders of ADSs
(other than the Rollover Shareholders) (the “Non-Rollover Security Holders”) was fair, from a financial point of view,
to the Non-Rollover Security Holders.
Credit Suisse’s opinion was directed
to the Special Committee, and only addressed, as of December 5, 2015, the fairness, from a financial point of view, to the Non-Rollover
Security Holders of each of the Per Share Merger Consideration and the Per ADS Merger Consideration to be received in the Merger
by such holders and did not address any other aspect or implication of the Merger. The summary of Credit Suisse’s opinion
in this proxy statement is qualified in its entirety by reference to the full text of its written opinion, which is included as
Annex C to this proxy statement and sets forth the procedures followed, assumptions made, qualifications and limitations on the
review undertaken and other matters considered by Credit Suisse in connection with the preparation and rendering of its opinion.
Therefore, you should read the opinion in its entirety for these assumptions, qualifications, limitations and other matters. However,
neither Credit Suisse’s written opinion nor the summary of its opinion and the related analyses set forth in this proxy
statement is intended to be, and they do not constitute, advice or a recommendation to any holder of Shares as to how such holder
should vote or act with respect to any matter relating to the Merger or otherwise.
Please see “Special
Factors— Opinions of the Special Committee’s Financial Advisor” beginning
on page 50 for additional information.
Interests of the Company’s Executive Officers and Directors
in the Merger (Page 66)
In considering the recommendation of the Special
Committee and the Board, the Company’s shareholders should be aware that certain of the Company’s directors and executive
officers have interests in the transaction that are different from, and/or in addition to, the interests of the Company’s
shareholders generally. These interests include, among others:
| · | the conversion
of each option to purchase Shares granted under the Share Incentive Plan that is issued
and outstanding immediately prior to the Effective Time and shall have become vested
on or prior to the Effective Time held by the directors and officers of the Company (including
members of the Special Committee) into the right to receive, as soon as practicable after
the Effective Time, an amount equal to the product of (a) the total number of Shares
issuable under such option immediately prior to the Effective Time multiplied by (b) the
excess of US$17.90 over the exercise price payable per Share under such option, if any,
in cash, without interest and net of any applicable withholding taxes; |
| · | subject
to certain exceptions with respect to the options held by the Selected Key Employees,
the Buyer Group Directors and the members of the Special Committee, the conversion of
each option to purchase Shares granted under the Share Incentive Plan that is issued
and outstanding immediately prior to the Effective Time and shall not have become vested
on or prior to the Effective Time held by the directors and officers of the Company into
the right to receive a restricted cash award subject to the same vesting conditions and
schedules applicable to such option, as soon as practicable after the Effective Time,
in an amount equal to the product of (a) the total number of Shares issuable under
such option immediately prior to the Effective Time multiplied by (b) the excess
of US$17.90 over the exercise price payable per Share under such option, if any, in cash,
without interest and net of any applicable withholding taxes. In the case that the exercise
price per Share of any option is not lower than US$17.90, such option will be cancelled
for no consideration; |
| · | subject
to certain exceptions with respect to the restricted share units held by the Selected
Key Employees, the Buyer Group Directors and the members of the Special Committee, the
conversion of each restricted share unit awarded under the Share Incentive Plan immediately
prior to the Effective Time held by the directors and officers of the Company (other
than the members of the Special Committee) into the right to receive a restricted cash
award subject to the same vesting conditions and schedules applicable to such restricted
share unit, as soon as practicable after the Effective Time, in an amount equal to the
product of (a) US$17.90 and (b) the total number of Shares underlying such restricted
share unit, without interest and net of any applicable withholding taxes; |
| · | the acceleration
of the vesting of restricted cash awards to be issued to the Selected Key Employees,
the Buyer Group Directors and the members of the Special Committee; |
| · | continued
indemnification rights and directors and officers liability insurance to be provided
by the surviving company to former directors and officers of the Company pursuant to
the Merger Agreement; |
| · | the monthly
compensation of US$12,000 for each of the members of the Special Committee in exchange
for their services in such capacity (the payment of which is not contingent upon the
completion of the Merger or the Special Committee’s or the Board’s recommendation
of the Merger); and |
| · | the expected
continuation of service of the executive officers of the Company with the surviving company
in positions that are substantially similar to their current positions, allowing them
to benefit from remuneration arrangements with the surviving company. |
As of the date of this proxy statement,
our directors and executive officers, as a group held an aggregate of 4,905,606 Shares (excluding Shares owned by Poly Victory
and Ctrip Shanghai), options to purchase 1,027,050 Shares and 161,850 restricted share units. The maximum total amount of all
cash payments our directors and executive officers may receive in respect of their Shares, vested and unvested options and restricted
share units if the Merger is consummated is approximately US$15,118,537 (including restricted cash awards).
In addition, the Special Committee and the
Board were aware that certain directors and officers of the Company hold the Rollover Shares, which, pursuant to the terms of
an agreement of asset purchase by share issue, dated December 6, 2015 (the “Share Exchange Agreement”), among BTG
Hotels, BTG and the Rollover Shareholders (other than Poly Victory), will be exchanged for a certain number of common shares of
BTG Hotels at the completion of the share exchange transaction contemplated by the Share Exchange Agreement, and that certain
directors, officers and affiliates of the Company have entered into certain other transactions with the members of the Buyer Group
or their affiliates, in each case, as described under “Special Factors—Related-Party Transactions” beginning
on page 68.
The Special Committee and the Board were aware
of these potential conflicts of interest and considered them, among other matters, in reaching their decisions and recommendations
with respect to the Merger Agreement and related matters. Please see “Special Factors—Interests of Certain Persons
in the Merger” beginning on page 65 for additional information.
Acquisition Proposals (Page 89)
None of the Company, any of its subsidiaries
or any of their respective directors, officers or representatives will, directly or indirectly, (i) solicit, initiate or
knowingly encourage (including by way of furnishing nonpublic information in a matter designed to knowingly encourage), or take
any other action to knowingly facilitate, any inquiries or the making of any proposal or offer (including any proposal or offer
to shareholders of the Company) with respect to, or that would reasonably be expected to lead to, any competing transaction, (ii) enter
into, maintain or continue discussions or negotiations with, or provide any nonpublic information relating to the Company or the
Transactions to, any person or entity in furtherance of such inquiries or to obtain a proposal or offer for a competing transaction,
(iii) agree to approve, endorse or recommend any competing transaction, or enter into any letter of intent or contract or
commitment contemplating or otherwise relating to any competing transaction, or (iv) authorize or permit any of the officers,
directors or representatives of the Company or any of its subsidiaries acting directly or indirectly under the direction of the
Company or any of its subsidiaries, to take any action set forth in (i) through (iii) above (in each case, other than
to the extent expressly permitted pursuant to the Merger Agreement). The Company will cease and cause to be terminated all discussions
with any third parties existing as of the date of the Merger Agreement regarding a competing transaction.
Prior
to obtaining the required Company shareholder authorization and approval of the Merger Agreement, the Plan of Merger and the Transactions,
including the Merger, if the Company receives an unsolicited, written, bona fide proposal or offer regarding a competing
transaction from any person that did not result from a breach by the Company of its obligations set forth in the above paragraph,
the Company and its representatives may (a) contact and engage in discussions with such person in order to clarify and understand
the terms and conditions of the proposal or offer to the extent the Special Committee shall have determined in good faith that
such contact is necessary to determine whether such proposal constitutes or is reasonably expected to lead to a superior proposal
and (b) furnish information to, and enter into discussions with, such person if the Special Committee has (i) determined
in good faith (after consultation with its financial advisor and independent legal counsel) that such proposal or offer constitutes
or would reasonably be expected to result in a superior proposal, (ii) determined in good faith (after consultation with independent
legal counsel) that failure to furnish information or enter into discussions with such person would be reasonably likely to violate
its fiduciary obligations to the Company and its shareholders under applicable law and (iii) obtained from such person an
executed confidentiality agreement on terms no less favorable to the Company in the aggregate than those contained in the confidentiality
agreement between the Company and the Proposal Parties;
provided, that the Company will concurrently make available to Holdco any material information concerning the Company and
its subsidiaries that is provided to any such person and that was not previously made available to Holdco or
its representatives.
Conditions to the Merger (Page 94)
The completion of the Transactions, including
the Merger, is subject to the satisfaction of the following conditions:
| · | the
Merger Agreement, the Plan of Merger and the Transactions being authorized and approved
by the Company's shareholders constituting the Requisite Company Vote; |
| · | no
governmental authority having enacted, issued, promulgated, enforced or entered any law
or award, writ, injunction, determination, rule, regulation, judgment, decree or executive
order which is then in effect and has or would have the effect of making the Merger illegal
or otherwise prohibiting the consummation of the Transactions, including the Merger; |
| · | the
Merger Agreement, the Plan of Merger and the Transactions being authorized, approved
and adopted by the Parent’s shareholders constituting the Requisite Parent Vote;
and |
| · | all
Requisite Regulatory Approvals (as defined below) have been obtained and be in full force
and effect. |
The obligations of Holdco and Merger Sub to
consummate the Merger are also subject to the satisfaction, or waiver of the following conditions:
| · | (1)
representations and warranties of the Company in the Merger Agreement regarding the share
capital of the Company being true and correct in all but de minimis respects as
of the date of the Merger Agreement and as of the closing date of the Merger, as if made
on such date and time (other than representations and warranties that by their terms
address matters only as of a specified time, which shall be true and correct in all respects
as of such time), (2) representations and warranties of the Company in the Merger
Agreement regarding (i) the absence of options, warrants, preemptive or other rights
with respect to securities of the Company and each of its subsidiaries, or any securities
that give their holders the right to vote with the Company's shareholders, (ii)
the Company’s corporate power and authority to perform its obligations under and
to consummate the Transactions, and the valid execution and delivery of the Merger Agreement
by the Company and the Merger Agreement as a legal, valid and binding obligation of the
Company, (iii) the declaration of advisability and recommendation to the shareholders
of the Company of the Merger Agreement and the Merger by the Special Committee and by
the Board, and the authorization and approval of the Merger Agreement, the Plan of Merger
and the Transactions, including the Merger, by the Board, and (iv) the receipt of
opinion from Credit Suisse, being true and correct in all respects as of the date of
the Merger Agreement and as of the closing date of the Merger, as if made on such date
and time (other than representations and warranties that by their terms address matters
only as of a specified time, which shall be true and correct in all respects as of such
time), and (3) all other representations and warranties of the Company set forth
in the Merger Agreement (disregarding any limitation or qualification by “materiality”
or “Company Material Adverse Effect”) being true and correct in all respects
as of the date of the Merger Agreement and as of the closing date of the Merger, as if
made on such date and time (other than representations and warranties that by their terms
address matters only as of a specified time, which shall be true and correct in all respects
as of such time), except to the extent that the failure of such representations and warranties
to be true and correct in all respects, individually or in the aggregate, would not reasonably
be expected to have a Company Material Adverse Effect; |
| · | the
Company having performed or complied in all material respects with all agreements and
covenants required to be performed or complied with by it under the Merger Agreement
prior to or at the Effective Time; |
| · | the
Company having delivered to Holdco a certificate, dated the closing date, signed by a
senior executive officer of the Company, certifying as to the fulfillment of the above
conditions; and |
| · | since
the date of the Merger Agreement, there not having occurred and be continuing a Company
Material Adverse Effect. |
The obligations of the Company to consummate
the Merger are also subject to the satisfaction, or waiver, of the following conditions:
| · | the
representations and warranties of Holdco and Merger Sub in the Merger Agreement (disregarding
any limitation or qualification by “materiality”) being true and correct
in all respects as of the date of the Merger Agreement and as of the closing date of
the Merger, as if made on and at date and time (other than representations and warranties
that by their terms address matters only as of a specified time, which shall be true
and correct in all respects as of such time), except where the failure of such representations
and warranties to be true and correct, individually or in the aggregate, would not reasonably
be expected to prevent, materially delay or materially impede or impair the ability of
Holdco and Merger Sub to consummate any of the Transactions; |
| · | each
of Holdco and Merger Sub having performed or complied in all material respects with all
agreements and covenants required to be performed or complied with by it under the Merger
Agreement prior to or at the time of closing of the Merger; and |
| · | Holdco
having delivered to the Company a certificate, dated the closing date, signed by an executive
officer of Holdco, certifying as to the fulfillment of the above conditions. |
Termination of the Merger Agreement (Page 95)
The Merger Agreement may be terminated at any
time prior to the Effective Time:
| · | by
mutual written consent of the Company (upon the recommendation of the Special Committee)
and Holdco; or |
| · | by
either Parent or the Company (upon the recommendation of the Special Committee), if:
|
| o | there occurs a Termination Date Termination Event (as
defined and further described in the section entitled “The Merger Agreement—Termination
of the Merger Agreement”); |
| o | there occurs a Final Order Termination Event (as defined
and further described in the section entitled “The Merger Agreement—Termination
of the Merger Agreement”); |
| o | there occurs a Company No Vote Termination Event (as
defined and further described in the section entitled “The Merger Agreement—Termination
of the Merger Agreement”); and |
| o | there occurs a Parent No Vote Termination Event (as
defined and further described in the section entitled “The Merger Agreement—Termination
of the Merger Agreement”); or |
| o | there occurs a Holdco Breach Termination Event (as defined
and further described in the section entitled “The Merger Agreement—Termination
of the Merger Agreement”); |
| o | there occurs a Holdco Failure to Close Termination Event
(as defined and further described in the section entitled “The Merger Agreement—Termination
of the Merger Agreement”); and |
| o | there occurs a Superior Proposal Termination Event (as
defined and further described in the section entitled “The Merger Agreement—Termination
of the Merger Agreement”). |
| o | there occurs a Company Breach Termination Event (as
defined and further described in the section entitled “The Merger Agreement—Termination
of the Merger Agreement”); and |
| o | there occurs a Company Triggering Event Termination
Event (as defined and further described in the section entitled “The Merger Agreement—Termination
of the Merger Agreement”). |
Termination Fees (Page 96)
The Company is required to pay to Parent a
cash termination fee in an amount equal to US$44,437,000 (or, at the Company’s option, an equivalent amount in RMB) if the
Merger Agreement is terminated by:
| · | Holdco
pursuant to a Company Breach Termination Event; |
| · | Holdco
pursuant to a Company Triggering Event Termination Event; |
| · | the
Company pursuant to a Superior Proposal Termination Event; |
| · | the
Company or Holdco pursuant to a Company No Vote Termination Event and if (i) prior to
the Company's shareholders’ meeting, a bona fide offer or proposal regarding a
competing transaction has been made known to the Company or has been publicly announced
or publicly made known and has not been withdrawn, and (ii) within 9 months after such
termination, the Company enters into a definitive agreement related to the same competing
transaction, provided that, for purposes of determining whether a termination fee is
payable by the Company under such circumstances, all references to “20%”
in the definition of “competing transaction” will be deemed to be references
to “50%”; or |
| · | the
Company or Holdco pursuant to a Termination Date Termination Event and if (i) prior to
the Termination Date, a bona fide offer or proposal regarding a competing transaction
has been made known to the Company or has been publicly announced or publicly made known
and has not been withdrawn, (ii) within 9 months after such termination, the Company
enters into a definitive agreement related to the same competing transaction, and (iii)
all of the conditions set forth in Section 7.01 (other than 7.01(a)) of the Merger Agreement
have been satisfied at the time of such termination. |
Parent is required to pay to a PRC subsidiary
of the Company designated by the Company a cash termination fee of an amount in RMB equal to US$88,873,000 if the Merger Agreement
is terminated by the Company pursuant to:
| · | a
Holdco Breach Termination Event; or |
| · | a
Holdco Failure to Close Termination Event. |
Parent is required to pay to a PRC subsidiary
of the Company designated by the Company a cash termination fee of an amount in RMB equal to US$17,775,000 if the Merger Agreement
is terminated by the Company or Holdco pursuant to:
| · | a
Termination Date Termination Event or a Final Order Termination Event and if (i) at the
time of such termination, any of the conditions set forth in Section 7.01 of the Merger
Agreement has not been satisfied and such non-satisfaction is not the result of the Company’s
breach of any of its representations, warranties, covenants or agreements under the Merger
Agreement, (iii) the condition set forth in Section 7.01(a) of the Merger Agreement has
been satisfied, and (iv) the Company has confirmed in writing to Holdco that each of
the conditions set forth in Section 7.02 of the Merger Agreement would be satisfied if
the closing of the Merger were to occur immediately prior to such termination; or |
| · | a
Parent No Vote Termination Event. |
Parent has delivered to the Company a performance
guarantee issued by Industrial and Commercial Bank of China Limited, Beijing Central Business District Branch, in favor of Suzhou
Hengchuang Software Co., Ltd., a wholly owned subsidiary of the Company incorporated in the PRC, pursuant to which, in the event
and to the extent that Parent fails to pay the full amount of the termination fee payable by Parent under the Merger Agreement
when due and in accordance with the Merger Agreement, Suzhou Hengchuang Software Co., Ltd. (upon the written instruction by the
Special Committee or the Board upon the recommendation of the Special Committee) will have the right to the payment of any unpaid
amount of such termination fee in RMB up to RMB567 million upon delivery of a demand to Industrial and Commercial Bank of China
Limited, Beijing Central Business District Branch, no later than November 3, 2016.
Material U.S. Federal Income Tax Consequences (Page 71)
The
receipt of cash pursuant to the Merger will be a taxable transaction for U.S. federal income tax purposes and may also be a taxable
transaction under other applicable tax laws. See “Special Factors—Material U.S. Federal Income Tax Consequences”
beginning on page 71. The tax consequences of the Merger to you will depend upon your own personal circumstances. You should consult
your tax advisors for a full understanding of the U.S. federal, state, local, non-U.S. and other tax consequences of the Merger
to you.
Material PRC Income Tax Consequences (Page 74)
As there has not been a definitive determination
of the Company’s status by the PRC tax authorities, the Company cannot confirm whether it would be considered a PRC resident
enterprise under the PRC Enterprise Income Tax Law or whether the gain recognized on the receipt of consideration for the Shares
or ADSs would otherwise be subject to PRC tax to holders of such Shares or ADSs that are not PRC tax residents. If the PRC tax
authorities were to determine that the Company should be considered a resident enterprise or that the receipt of cash for our
Shares or ADSs should otherwise be subject to PRC tax, then gain recognized on the receipt of cash for our Shares or ADSs pursuant
to the Merger or through the exercise of the dissenters’ rights, as the case may be, by our shareholders or ADSs holders
who are not PRC residents could be treated as PRC-source income that would be subject to PRC income tax at a rate of 20% in the
case of individuals or 10% in the case of corporations (subject to applicable treaty relief). You should consult your own tax
advisor for a full understanding of the tax consequences of the Merger to you, including any PRC tax consequences.
Material Cayman Islands Tax Consequences (Page 74)
The Cayman Islands
currently have no form of income, corporate or capital gains tax and no estate duty, inheritance tax or gift tax. Subject to certain
qualifications, no taxes, fees or charges will be payable (either by direct assessment or withholding) to the government or other
taxing authority in the Cayman Islands under the laws of the Cayman Islands in respect of the Merger or the receipt of cash for
Shares or ADSs under the terms of the Merger Agreement. Please see “Special Factors— Material
Cayman Islands Tax Consequences” beginning on page 74 for additional information.
Regulatory Matters (Page 71)
The Company does not believe that any material
federal or state regulatory approvals, filings or notices are required in connection with the Merger other than the Requisite
Regulatory Approvals (as defined under the caption “The Merger Agreement—Agreement to Use Reasonable Best Efforts”),
the approvals, filings or notices required under the federal securities laws, and the filing of the Plan of Merger (and supporting
documentation as specified in the Cayman Islands Companies Law) with the Cayman Registrar and in the event the Merger becomes
effective, a copy of the certificate of merger being given to the shareholders and creditors of the Company and Merger Sub as
at the time of the filing of the Plan of Merger.
As of the date of this proxy statement, BTG
Hotels has received the approval by the State-owned Assets Supervision and Administration Commission of the Beijing Municipal
Government of the PRC and completed the overseas investment filing with the PRC National Development and Reform Commission, in
each case, with respect to the Merger.
Litigation Related to the Merger (Page 71)
The Company is not aware of any lawsuit that
challenges the Merger Agreement, the Plan of Merger or any of the Transactions, including the Merger.
Accounting Treatment of the Merger (Page 71)
The Merger is expected to be accounted for,
at historical cost, as a merger of entities under common control in accordance with Accounting Standards Codification 805-50,
“Business Combinations—Related Issues.”
Market Price of the ADSs (Page 75)
The Per ADS Merger Consideration of US$35.80
represents an 18.7% premium over the closing price of US$30.17 per ADS as quoted by NASDAQ on June 10, 2015, and a premium of
29.4% and 36.6%, respectively, over the 30- and 60- trading day volume-weighted average price as quoted by NASDAQ prior to June
10, 2015, the last trading day prior to our announcement on June 11, 2015 that we had received a non-binding “going private”
proposal from the Proposal Parties.
Fees and Expenses (Page 70)
Whether or not the Merger is completed, all
costs and expenses incurred in connection with the Merger Agreement and the Transactions will be paid by the party incurring such
costs and expenses except as otherwise provided in the Merger Agreement and the Consortium Agreement among the Proposal Parties.
Remedies and Limited Liability (Page 97)
The Company is entitled to an injunction or
injunctions to prevent breaches of the Merger Agreement by Parent or Merger Sub and to specifically enforce the terms and provisions
thereof against Parent and Merger Sub, which remedies are in addition to any other remedy to which the Company is entitled at
law or in equity, except that the Company will not be entitled to seek an injunction, specific performance or other equitable
relief to enforce Holdco’s and Merger Sub’s obligations under the Merger Agreement to consummate the Merger and effect
the closing of the Merger.
Parent and Merger Sub are entitled to an injunction
or injunctions to prevent breaches of the Merger Agreement and to enforce specifically the terms and provisions thereof against
the Company, which remedies are in addition to any other remedy to which they are entitled at law or in equity.
While the Company, Parent and Merger Sub may
pursue both a grant of specific performance and payment of a termination fee, none of them will be permitted or entitled to receive
both a grant of specific performance that results in the completion of the Merger and payment of a termination fee.
QUESTIONS
AND ANSWERS ABOUT THE EXTRAORDINARY GENERAL MEETING
AND
THE MERGER
The following questions and answers address
briefly some questions you may have regarding the extraordinary general meeting and the Merger. These questions and answers may
not address all questions that may be important to you as a shareholder of the Company. Please refer to the more detailed information
contained elsewhere in this proxy statement, the annexes to this proxy statement and the documents referred to or incorporated
by reference in this proxy statement.
| Q: | Why am I receiving this proxy statement? |
| A: | On December 6, 2015, we entered into the Merger Agreement
with Holdco, Merger Sub and, solely for the purposes of Section 6.02(e), Section 6.08,
Section 6.09, Section 8.06, Section 9.09 and Section 9.10 thereof, BTG Hotels. You are
receiving this proxy statement in connection with the solicitation of proxies by the
Board in favor of, among other proposals, the proposal to authorize and approve the Merger
Agreement, the Plan of Merger and the Transactions, including the Merger, at an extraordinary
general meeting or at any adjournment or postponement of such extraordinary general meeting. |
| A: | The Merger is a going-private transaction pursuant to which
Merger Sub will merge with and into the Company. Once the Merger Agreement and the Plan
of Merger are authorized and approved by the shareholders of the Company and the other
closing conditions under the Merger Agreement have been satisfied or waived, and the
Plan of Merger is registered with the Cayman Registrar, Merger Sub will merge with and
into the Company, with the Company continuing as the surviving company after the Merger.
If the Merger is completed, the Company will be a privately held company beneficially
owned by Holdco and the Rollover Shareholders, and as a result of the Merger, the ADSs
will no longer be listed on NASDAQ and the Company’s ADS program will terminate,
and the Company will cease to be an independent publicly traded company. |
| Q: | What will I receive in the Merger? |
| A: | If you own Shares and the Merger is completed, at the Effective
Time, you will be entitled to receive US$17.90 per Share, in cash, without interest and
net of any applicable withholding taxes, for each Share you own immediately prior to
the Effective Time (unless you validly exercise and have not effectively withdrawn or
lost your dissenters’ rights under Section 238 of the Cayman Islands Companies
Law with respect to the Merger, in which event you will be entitled to receive the fair
value of each Share as determined pursuant to Section 238 of the Cayman Islands
Companies Law). |
If you own ADSs and the Merger is completed, you will
be entitled to receive US$35.80 per ADS (less a cancellation fee of US$0.05 per ADS pursuant to the terms of the Deposit Agreement),
in cash, without interest and net of any applicable withholding taxes, for each ADS you own immediately prior to the Effective
Time unless you (a) surrender your ADS to the ADS Depositary, pay the ADS Depositary's fees required for the cancellation
of ADSs, provide instructions for the registration of the corresponding Shares, and certify that you have not given, and will
not give, voting instructions as to the ADSs (or, alternatively, you will not vote the Shares) before the close of business in
New York City on March 1, 2016 and become a registered holder of Shares by the close of business in the Cayman Islands on
March 4, 2016 and (b) validly exercise and have not effectively withdrawn or lost your dissenters’ rights under Section 238
of the Cayman Islands Companies Law with respect to the Merger, in which event you will be entitled to the fair value of each
corresponding Share pursuant to the Cayman Islands Companies Law.
Please see “Special Factors—Material U.S. Federal
Income Tax Consequences,” “Special Factors—Material PRC Income Tax Consequences” and “Special Factors—Material
Cayman Islands Tax Consequences” beginning on page 71, page 74 and page 74 for a more detailed description
of the tax consequences of the merger. You should consult your own tax advisor for a full understanding of how the merger will
affect your U.S. federal, state, local, non-U.S. and other taxes.
| Q: | How will the Company's options be treated in the
Merger? |
| A: | If the Merger is completed, at the Effective Time, (i) each
option to purchase Shares granted under the Share Incentive Plan that is issued and outstanding
immediately prior to the Effective Time and shall have become vested on or prior to the
Effective Time will be cancelled and converted into the right to receive, as soon as
practicable after the Effective Time, an amount equal to the product of (a) the
total number of Shares issuable under such option immediately prior to the Effective
Time multiplied by (b) the excess of US$17.90 over the exercise price payable per
Share under such option, if any, in cash, without interest and net of any applicable
withholding taxes, and (ii) except as provided under the arrangement with respect to
certain options held by certain directors, officers and employees of the Company, each
option to purchase Shares granted under the Share Incentive Plan that is issued and outstanding
immediately prior to the Effective Time and shall not have become vested on or prior
to the Effective Time will be cancelled and converted into the right to receive a restricted
cash award subject to the same vesting conditions and schedules applicable to such option,
as soon as practicable after the Effective Time, in an amount equal to the product of
(a) the total number of Shares issuable under such option immediately prior to the
Effective Time multiplied by (b) the excess of US$17.90 over the exercise price
payable per Share under such option, if any, in cash, without interest and net of any
applicable withholding taxes. |
| Q: | How will the Company’s restricted share units
be treated in the Merger? |
| A: | If the Merger is completed, at the Effective Time, except
as provided under the arrangement with respect to certain restricted share units held
by certain directors, officers and employees of the Company, each restricted share unit
awarded under the Share Incentive Plan immediately prior to the Effective Time will be
cancelled and converted into the right to receive a restricted cash award subject to
the same vesting conditions and schedules applicable to such restricted share unit, as
soon as practicable after the Effective Time, in an amount equal to the product of (a) US$17.90
and (b) the total number of Shares underlying such restricted share unit, without interest
and net of any applicable withholding taxes. |
| Q: | After the Merger is completed, how will I receive
the merger consideration for my Shares? |
| A: | If you are a registered holder of Shares, promptly after
the Effective Time, a paying agent appointed by Holdco will mail you (a) a form
of letter of transmittal specifying how the delivery of the merger consideration to you
will be effected and (b) instructions for effecting the surrender of any share certificates
representing Shares (or affidavits and indemnities of loss in lieu of share certificates)
in exchange for the applicable merger consideration. |
If your Shares are represented by share certificates,
unless you validly exercise and have not effectively withdrawn or lost your dissenters’ rights in accordance with Section 238
of the Cayman Islands Companies Law, upon your surrender of the share certificates (or an affidavit and indemnity of loss
in lieu of the share certificates) together with a duly completed letter of transmittal, the paying agent will send you US$17.90,
in cash, without interest and net of any applicable withholding taxes, for each Share represented by the share certificates after
the completion of the Merger.
In the event of a transfer of ownership of Shares that
is not registered in the register of members of the Company, a check for any cash to be exchanged upon due surrender of the relevant
share certificate(s) will be issued to such transferee if the share certificate(s) are presented to the paying agent, accompanied
by all documents reasonably required to evidence and effect such transfer and to evidence that any applicable share transfer taxes
has been paid or are not applicable.
The Per Share Merger Consideration may be subject to
withholding taxes, including if the paying agent has not received from you a properly completed and signed U.S. Internal
Revenue Service Form W-8 or W-9, as applicable.
If your Shares are held in “street name”
by your broker, bank or other nominee, you will receive instructions from your broker, bank or other nominee on how to surrender
your Ordinary Shares and receive the merger consideration for those Shares.
| Q: | After the Merger is completed, how will I receive
the merger consideration for my ADSs? |
| A: | If you are a registered holder of ADSs that are evidenced
by certificates, also referred to as American depositary receipts (“ADRs”),
unless you have surrendered your ADRs to the ADS Depositary for cancellation prior to
the Effective Time, upon your surrender of the ADRs (or an affidavit and indemnity
of loss in lieu of the ADRs) together with a duly completed letter of transmittal (which
will be supplied to you by the ADS Depositary after the Effective Time), the ADS Depositary
will send you a check for the Per ADS Merger Consideration, without interest and net
of the ADS Depositary’s fee for the cancellation of the ADSs and any applicable
withholding taxes, for each ADS represented by the ADRs, in exchange for the cancellation
of your ADRs after the completion of the Merger. |
In the event of a transfer of ownership of Shares that
is not registered in the register of members of the Company, a check for any cash payable upon cancellation of the ADSs will be
issued to such transferee if the ADRs are presented to the ADS Depositary, accompanied by all documents reasonably required to
evidence and effect such transfer and to evidence that any applicable ADS transfer taxes have been paid or are not applicable.
The Per ADS Merger Consideration may be subject to backup
withholding taxes if the ADS Depositary has not received from you a properly completed and signed U.S. Internal Revenue Service
Form W-8 or W-9, as applicable.
If your ADSs are held in “street name” by
your broker, bank or other nominee, you will not be required to take any action to receive the merger consideration for your ADSs
as the ADS Depositary will arrange for the surrender of the ADSs and the remittance of the merger consideration with The Depository
Trust Company (the clearance and settlement system for the ADSs) for distribution to your broker, bank or other nominee on
your behalf. If you have any questions concerning the receipt of the merger consideration, please contact your broker, bank or
other nominee.
| Q: | When and where will the extraordinary general meeting
be held? |
| A: | The extraordinary general meeting will take place on March 25,
2016, at 10:00 a.m. (local time) at No. 124 Caobao Road, Xuhui District, Shanghai 200235,
People’s Republic of China. |
| Q: | What am I being asked to vote on? |
| A: | You will be asked to consider and vote on the following proposals: |
| (a) | as a special resolution, to authorize and approve the
Merger Agreement, the Plan of Merger and the Transactions, including the Merger and,
upon the Merger becoming effective, the amendment and restatement of the memorandum and
articles of association of the Company (as the surviving company) in the form attached
to the Plan of Merger; |
| (b) | as a special resolution, to authorize each director
or officer of the Company to do all things necessary to give effect to the Merger Agreement,
the Plan of Merger and the Transactions, including the Merger; and |
| (c) | if necessary, as an ordinary
resolution, to approve that the extraordinary general meeting be adjourned in order to
allow the Company to solicit additional proxies in the event that there are insufficient
proxies received at the time of the extraordinary general meeting to pass the special
resolutions to be proposed at the extraordinary general meeting. |
| Q: | What vote of the Company’s shareholders is
required to authorize and approve the Merger Agreement and the Plan of Merger? |
| A: | In order for the Merger to be completed, the Merger Agreement,
the Plan of Merger and the Transactions, including the Merger, must be authorized and
approved by (i) a special resolution (as defined in the Cayman Islands Companies Law),
which requires an affirmative vote of shareholders representing at least two-thirds of
the Shares present and voting in person or by proxy as a single class at the extraordinary
general meeting of the Company’s shareholders, and (ii) the Majority of the Minority
Vote Requirement which requires, so long as the Shares (excluding the Shares held by
the Rollover Shareholders) present and voting in person or by proxy at the extraordinary
general meeting of the Company’s shareholders exceed 50% of all of the issued and
outstanding Shares of the Company as of the close of business on the Share Record Date,
the affirmative vote of holders of Shares representing more than 50% of the Shares (excluding
the Shares held by the Rollover Shareholders) present and voting in person or by proxy
as a single class at such meeting. |
At the close of business in the Cayman Islands on
March 4, 2016, the record date for voting Shares at the extraordinary general meeting (the “Share Record Date”), 97,554,374 Shares are expected to be issued and outstanding and entitled to vote at the extraordinary general meeting.
Pursuant to the Support Agreement, each of the Rollover
Shareholders has agreed, upon the terms and subject to the conditions of the Support Agreement (i) to vote any and all of their
Shares in favor of the authorization and approval of the Merger Agreement, the Plan of Merger and the Transactions, including
the Merger, and appoint 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. As of the date of this proxy statement, the Rollover Shareholders
collectively beneficially own an aggregate of 33,661,685 Shares (excluding, for purposes of this calculation, Shares issuable
to the Rollover Shareholders upon the exercise of options of the Company), which represents approximately 34.5% of the total issued
and outstanding Shares.
Assuming the Rollover Shareholders comply with their
voting undertakings under the Support Agreement, based on the number of Shares expected to be issued and outstanding and entitled
to vote as of the close of business in the Cayman Islands on the Share Record Date, in order for the proposal to be authorized
and approved:
| (a) | assuming all issued and outstanding Shares expected to
be issued and outstanding and entitled to vote at the meeting are present in person or
by proxy and voting at the meeting, at least 31,374,565 Shares other than the Shares held by
the Rollover Shareholders must be voted in favor of the special resolutions to be proposed
at the extraordinary general meeting, including the special resolution to approve the
Merger Agreement, the Plan of Merger and the Transactions, including the Merger; and |
| (b) | in order to satisfy the Majority of Minority Vote Requirement,
assuming all issued and outstanding Shares expected to be issued and outstanding and
entitled to vote at the meeting are present in person or by proxy and voting at the meeting,
at least 31,946,345 Shares held by the Company’s shareholders other than the Rollover
Shareholders must be voted in favor of the proposal to authorize and approve the Merger
Agreement, the Plan of Merger and the Transactions, including the Merger. |
| Q: | What vote of the Company’s shareholders is
required to approve the proposal to adjourn the extraordinary general meeting, if necessary,
to solicit additional proxies? |
| A: | The proposal to adjourn the extraordinary general meeting, if
necessary, to solicit additional proxies must be authorized and approved by an affirmative
vote of shareholders representing a majority of Shares present and voting in person or
by proxy as a single class at the extraordinary general meeting. Based on the number
of Shares we expect to be issued and outstanding and entitled to vote on the Share Record
Date, and assuming all issued and outstanding Shares are present in person or by proxy
and voting at the meeting, 48,777,188 Shares must be voted in favor of the proposal to adjourn
the extraordinary general meeting to allow us, if necessary, to solicit additional proxies. |
| Q: | How does the Board recommend that I vote on the
proposals? |
| A: | After careful consideration and upon the unanimous recommendation
of the Special Committee and after each director duly disclosed his interests in the
Transactions, including the Merger, as required by the memorandum and articles of associations
of the Company as amended to date and the laws of the Cayman Islands, the Board unanimously
recommends that you vote: |
| · | FOR the
proposal to authorize and approve the Merger Agreement, the Plan of Merger and the Transactions,
including the Merger and, upon the Merger becoming effective, the amendment and restatement
of the memorandum and articles of association of the Company (as the surviving company)
in the form attached to the Plan of Merger; |
| · | FOR the
proposal to authorize each director or officer of the Company to do all things necessary
to give effect to the Merger Agreement, the Plan of Merger and the Transactions, including
the Merger; and |
| · | FOR the
proposal to adjourn the extraordinary general meeting in order to allow the Company to
solicit additional proxies in the event that there are insufficient proxies received
at the time of the extraordinary general meeting to pass the special resolutions to be
proposed at the extraordinary general meeting. |
You should read “Special Factors—Reasons
for the Merger and Recommendation of the Special Committee and the Board” beginning on page 38 for a discussion of the factors
that the Special Committee and the Board considered in deciding to recommend the approval of the Merger Agreement. In addition,
in considering the recommendation of the Special Committee and the Board with respect to the Merger Agreement, you should be aware
that some of the Company’s directors and executive officers have interests in the Merger that are different from, and/or
in addition to, the interests of the Company’s shareholders generally. See “Special Factors—Interests of Certain
Persons in the Merger” beginning on page 65.
| Q: | Who is entitled to vote at the extraordinary general
meeting? |
| A: | The Share Record Date is March 4, 2016. Only shareholders entered
in the register of members of the Company at the close of business in the Cayman Islands
on the Share Record Date or their proxy holders are entitled to vote at the extraordinary
general meeting or any adjournment thereof. |
The ADSs Record Date is February 23, 2016. Only ADS
holders of the Company at the close of business in New York City on the ADS Record Date are entitled to instruct the ADS Depositary
to vote at the extraordinary general meeting. Alternatively, you may vote at the extraordinary general meeting if you cancel your
ADSs by the close of business in New York City on March 1, 2016 and become a holder of Shares by the close of business in the
Cayman Islands on the Share Record Date.
| Q: | What constitutes a quorum for the extraordinary
general meeting? |
| A: | The presence, in person, by proxy or by corporate representative,
of one shareholder holding at least one-third of the issued and outstanding Shares that
are entitled to vote on the Share Record Date will constitute a quorum for the extraordinary
general meeting. |
| Q: | What effects will the Merger have on the Company?
|
| A: | As a result of the Merger, the Company will cease to be an
independent publicly traded company and will instead become a private company beneficially
owned by Holdco and the Rollover Shareholders. You will no longer have any interest in
the future earnings or growth of the Company. Following the completion of the Merger,
the registration of the Shares and ADSs and the Company's reporting obligations with
respect to the Shares and ADSs under the Exchange Act will be terminated upon application
to the SEC. In addition, upon the completion of the Merger, the ADSs will no longer be
listed or traded on any stock exchange, including NASDAQ, and the Company’s ADS
program will terminate. |
| Q: | When do you expect the Merger to be completed?
|
| A: | We are working toward completing the Merger as quickly as
possible and currently expect the Merger to close during the first half of 2016, after
all conditions to the Merger have been satisfied or waived. In order to complete the
Merger, we must obtain shareholder approval of the Merger at the extraordinary general
meeting and the other closing conditions under the Merger Agreement must be satisfied
or waived in accordance with the Merger Agreement. |
| Q: | What happens if the Merger is not completed? |
| A: | If the Company’s shareholders do not authorize and
approve the Merger Agreement, the Plan of Merger and the Transactions, including the
Merger, or if the Merger is not completed for any other reason, the Company’s shareholders
will not receive any payment for their Shares or ADSs pursuant to the Merger Agreement,
nor will the holders of any options or restricted share units receive any payment pursuant
to the Merger Agreement. In addition, the Company will remain a publicly traded company.
The ADSs will continue to be listed and traded on NASDAQ, provided that the Company continues
to meet NASDAQ’s listing requirements. In addition, the Company will remain subject
to SEC reporting obligations. Therefore, the Company’s shareholders and ADS holders
will continue to be subject to similar risks and opportunities as they currently are
with respect to their ownership of Shares and ADSs. In addition, there is a possibility
that the Rollover Shareholders, BTG Hotels and BTG would proceed with the Share Exchange
pursuant to the Share Exchange Agreement even if the Merger is not completed. |
Under specified circumstances in which the Merger Agreement
is terminated, the Company may be required to pay BTG Hotels a termination fee in an amount equal to US$44,437,000, or BTG Hotels
may be required to pay the Company a termination fee in an amount in RMB equal to either US$88,873,000 or US$17,775,000, in each
case, as described in “The Merger Agreement—Termination Fee” beginning on page 96.
| Q: | How will our directors and executive officers vote
on the proposal to authorize and approve the Merger Agreement? |
| A: | Pursuant to the Support Agreement, each of the Rollover Shareholders
has agreed to vote all of their Shares in favor of the authorization and approval of
the Merger Agreement, the Plan of Merger and the Transactions, including the Merger.
Mr. Shen, our co-founder, co-chairman of the Board, and one of our independent directors,
Smart Master, a British Virgin Islands company owned and controlled by Mr. Shen and his
spouse, Mr. Sun, our chief executive officer and director, Peace Unity, a British
Virgin Islands company indirectly owned and controlled by Mr. Sun, Mr. Zong, our president
and chief operating officer, Wise Kingdom. a British Virgin Islands company owned and
controlled by the spouse of Mr. Liang, our co-founder and independent director, are all
members of the Rollover Shareholders. As of the date of this proxy statement, Mr. Shen,
Mr. Liang, Mr. Sun, and Mr. Zong collectively beneficially own an aggregate of 4,539,255
Shares, which represent approximately 4.7% of the total issued and outstanding Shares
(including Shares represented by ADSs and excluding, for purposes of this calculation,
Shares issuable to the Rollover Shareholders upon exercise of options of the Company
and Shares beneficially owned by Ctrip). |
In addition, each of our directors who beneficially
owns Shares (including Shares represented by ADSs) other than Mr. Shen, Mr. Liang, Mr. Sun, and Mr. Zong, has informed us that,
as of the date of this proxy statement, he or she intends to vote all of his or her Shares in favor of approval and authorization
of the Merger Agreement, the Plan of Merger and the Transactions, including the Merger. As of the date of this proxy statement,
our directors and executive officers, other than Mr. Shen, Mr. Liang, Mr. Sun, and Mr. Zong, collectively beneficially own, in
the aggregate, 563,791 Shares, which consist of (a) 366,351 issued and outstanding Shares and (b) issued and unexercised
options to purchase 197,440 Shares issued pursuant to the Share Incentive Plan and exercisable within 60 days following the date
of this proxy statement which in aggregate represent approximately 0.58% of the total issued and outstanding Shares (excluding,
for purpose of this calculation, Shares beneficially owned by Poly Victory). See “Security Ownership of Certain Beneficial
Owners and Management of the Company” beginning on page 105 for additional information.
| Q: | What do I need to do now? |
| A: | We urge you to read this proxy statement carefully, including
its annexes, exhibits, attachments and the other documents referred to or incorporated
by reference herein and to consider how the Merger affects you as a shareholder. After
you have done so, please vote as soon as possible. |
| Q: | How do I vote if my Shares are registered in my
name? |
| A: | If Shares are registered in your name (that is, you do not hold
ADSs) as of the Share Record Date for shareholder voting, you should simply indicate
on your proxy card how you want to vote, and sign and mail your proxy card in the accompanying
return envelope as soon as possible. The deadline to lodge your proxy card so that your
Shares may be represented and voted at the extraordinary general meeting is March 23,
2016 at 10:00 a.m. (Shanghai time). |
Alternatively, you can attend the extraordinary general
meeting and vote in person. If you decide to sign and send in your proxy card, and do not indicate how you want to vote, Shares
represented by your proxy will be voted FOR the proposal to authorize and approve the Merger Agreement, the Plan of Merger and
the Transactions, including the Merger, and, upon the Merger becoming effective, the amendment and restatement of the memorandum
and articles of association of the Company (as the surviving company) in the form attached to the Plan of Merger, FOR the proposal
to authorize each director or officer of the Company to do all things necessary to give effect to the Merger Agreement, the Plan
of Merger and the Transactions, including the Merger, and FOR the proposal to adjourn the extraordinary general meeting in order
to allow the Company to solicit additional proxies in the event that there are insufficient proxies received at the time of the
extraordinary general meeting to pass the special resolutions to be proposed at the extraordinary general meeting, unless you
appoint a person other than the chairman of the meeting as proxy, in which case Shares represented by your proxy card will be
voted (or not submitted for voting) as your proxy determines.
If your Shares are held by your broker, bank or other
nominee, please see below for additional information.
| Q: | How do I vote if I own ADSs? |
| A: | If you own ADSs as of the close of business in New York City
on the ADS Record Date (and do not cancel such ADSs and become a registered holder of
the Shares underlying your ADSs as explained below), you cannot vote at the extraordinary
general meeting directly, but you may instruct the ADS Depositary (as the holder of Shares
underlying your ADSs) how to vote the Shares underlying your ADSs by completing and signing
the ADS voting instruction card and returning it in accordance with the instructions
printed on it as soon as possible. The ADS Depositary must receive such instructions
no later than 5:00 p.m. (New York City time) on March 21, 2016 in order to ensure the
Shares underlying your ADSs are properly voted at the extraordinary general meeting.
The ADS Depositary will endeavor to vote (or will endeavor to cause the vote of) the
Shares it holds on deposit at the extraordinary general meeting in accordance with the
voting instructions timely received from holders of ADSs. The ADS Depositary has advised
us that, pursuant to Section 4.7 of the Deposit Agreement, it will not vote or attempt
to exercise the right to vote any Shares other than in accordance with signed voting
instructions from the relevant ADS holder and, accordingly, Shares represented by ADSs
for which no timely voting instructions are received by the ADS Depositary will not be
voted. If you hold your ADSs in a brokerage, bank or other nominee account, you must
rely on the procedures of the broker, bank or other nominee through which you hold your
ADSs if you wish to vote. |
Alternatively, if you own ADSs as of the close of
business in New York City on the ADS Record Date, you may vote at the extraordinary general meeting directly if you cancel your
ADSs and become a holder of the Shares underlying your ADSs prior to the close of business in the Cayman Islands on the Share
Record Date. If you wish to cancel your ADSs for the purpose of voting Shares, you need to make arrangements to deliver your ADSs
to the ADS Depositary for cancellation before the close of business in New York City on March 1, 2016 together with (a) delivery
instructions for the corresponding Shares (including the name and address of the person who will be the registered holder of such
Shares), (b) payment of the ADS cancellation fees (US$0.05 for each ADS) to be cancelled pursuant to the terms of the Deposit
Agreement) and any applicable taxes and (c) a certification that you either (i) held the ADSs as of the ADS Record Date
and have not given, and will not give, voting instructions to the ADS Depositary as to the ADSs being cancelled, or have given
voting instructions to the ADS Depositary as to the ADSs being cancelled but undertake not to vote the corresponding Shares at
the extraordinary general meeting or (ii) did not hold the ADSs as of the ADS Record Date and undertakes not to vote the
corresponding Shares at the extraordinary general meeting. If you hold your ADSs in a brokerage, bank or other nominee account,
please contact your broker, bank or other nominee to find out what actions you need to take to instruct the broker, bank or other
nominee to cancel the ADSs on your behalf. Upon cancellation of the ADSs, the ADS Depositary will transfer registration of the
Shares to the former ADS holder (or a person designated by the former ADS holder). If after the registration of Shares in your
name you wish to receive a certificate evidencing the Shares registered in your name, you will need to request the Cayman Registrar
of Shares, Maples Corporate Services Limited, to issue and mail a certificate to your attention. If the Merger is not completed,
the Company would continue to be a public company in the United States and ADSs would continue to be listed on NASDAQ. Shares
are not listed and cannot be traded on any stock exchange other than NASDAQ and in such case only in the form of ADSs. As a result,
if you have cancelled your ADSs to attend the extraordinary general meeting and the Merger is not completed and you wish to be
able to sell your Shares on a stock exchange, you would need to deposit your Shares into the Company’s ADS program for the
issuance of the corresponding number of ADSs, subject to the terms and conditions of applicable law and the Deposit Agreement,
including, among other things, payment of relevant fees of the ADS Depositary for the issuance of ADSs and applicable share transfer
taxes (if any) and related charges pursuant to the Deposit Agreement.
| Q: | If my Shares or ADSs are held in a brokerage, bank
or other nominee account, will my broker, bank or other nominee vote my Shares or ADSs
on my behalf? |
| A: | Your broker, bank or other nominee will only vote your Shares
on your behalf or give voting instructions with respect to the Shares underlying your
ADSs if you instruct it how to vote. Therefore, it is important that you promptly follow
the directions provided by your broker, bank or other nominee regarding how to instruct
it to vote your Shares or ADSs. If you do not instruct your broker, bank or other nominee
how to vote your Shares that it holds, those Shares or ADSs may not be voted. |
| Q: | What will happen if I abstain from voting or fail
to vote on the proposal to authorize and approve the Merger Agreement? |
| A: | If you abstain from voting, fail to cast your vote in person,
fail to complete and return your proxy card in accordance with the instructions set forth
on the proxy card, or fail to give voting instructions to the ADS Depositary, your broker,
bank or other nominee, your vote will not be counted. |
| A: | Yes. If you are a holder of Shares, you may change your vote
in one of the following three ways: |
| · | First,
you may revoke a proxy by written notice of revocation given to the chairman of the extraordinary
general meeting at least two hours before the extraordinary general meeting commences.
Any written notice revoking a proxy should be sent to Homeinns Hotel Group, No. 124 Caobao
Road, Xuhui District, Shanghai 200235, People’s Republic of China, Attention: Ethan
Ruan. |
| · | Second, you
may complete, date and submit a new proxy card bearing a later date than the proxy card
sought to be revoked to the Company no later than 10:00 a.m. (Shanghai time) on March 23,
2016, which is the deadline to lodge your proxy card. |
| · | Third,
you may attend the extraordinary general meeting and vote in person. Attendance, by itself,
will not revoke a proxy. It will only be revoked if the shareholder actually votes at
the extraordinary general meeting. |
If you hold Shares through a broker, bank or other nominee
and have instructed the broker, bank or other nominee to vote your Shares, you must follow directions received from the broker,
bank or other nominee to change your instructions.
Holders of ADSs may revoke their voting instructions
by notification to the ADS Depositary in writing at any time prior to 5:00 p.m. (New York City time) on March 21, 2016. A holder
of ADSs can do this in one of two ways:
| · | First,
a holder of ADSs can revoke its voting instructions by written notice of revocation timely
delivered to the ADS Depositary. |
| · | Second,
a holder of ADSs can complete, date and submit a new ADS voting instruction card to the
ADS Depositary bearing a later date than the ADS voting instruction card sought to be
revoked. |
If you hold your ADSs through a broker, bank or other
nominee and you have instructed your broker, bank or other nominee to give ADS voting instructions to the ADS Depositary, you
must follow the directions of your broker, bank or other nominee to change those instructions.
| Q: | What should I do if I receive more than one set
of voting materials? |
| A: | You may receive more than one set of voting materials, including
multiple copies of this proxy statement or multiple proxy or voting instruction cards.
For example, if you hold your Shares or ADSs in more than one brokerage, bank or other
nominee account, you will receive a separate voting instruction card for each brokerage,
bank or other nominee account in which you hold Shares or ADSs. If you are a holder of
record and your Shares or ADSs are registered in more than one name, you will receive
more than one proxy or voting instruction card. Please submit each proxy card that you
receive. |
| Q: | Should I send in my share certificates or my American
Depositary Receipts representing ADSs (“ADRs”) now? |
| A: | No. After the Merger is completed, you will be sent a form
of letter of transmittal with detailed written instructions for exchanging your Share
certificates for the merger consideration. Please do not send in your certificates now.
Similarly, you should not send in the ADRs that evidence your ADSs at this time. Promptly
after the Merger is completed, the ADS Depositary will call for the surrender of all
ADRs for delivery of the merger consideration. ADR holders will be receiving a similar
form of letter of transmittal and written instructions from the ADS Depositary relating
to the foregoing. |
All holders of uncertificated Shares and uncertificated
ADSs (i.e., holders whose Shares or ADSs are held in book entry) will automatically receive their merger consideration shortly
after the Merger is completed without any further action required on the part of such holders.
| Q: | What happens if I sell my Shares or ADSs before
the extraordinary general meeting? |
| A: | The Share Record Date for voting at the extraordinary general
meeting is earlier than the date of the extraordinary general meeting and the date that
the Merger is expected to be completed. If you transfer your Shares after the Share Record
Date for voting but before the extraordinary general meeting, you will retain your right
to vote at the extraordinary general meeting unless you have given, and not revoked,
a proxy to the person to whom you transfer your Shares, but will transfer the right to
receive the Per Share Merger Consideration in cash without interest to such person, so
long as such person is registered as the owner of such Shares when the Merger is completed.
In such case, your vote is still very important and you are encouraged to vote. |
The ADS Record Date is the close of business in New
York City on February 23, 2016. If you transfer your ADSs after the ADS Record Date but before the extraordinary general meeting,
you will retain your right to instruct the ADS Depositary to vote at the extraordinary general meeting, but will transfer the
right to receive the Per ADS Merger Consideration in cash without interest to the person to whom you transfer your ADSs, so long
as such person owns such ADSs when the Merger is completed.
| Q: | Am I entitled to dissenters’ rights? |
| A: | Shareholders who dissent from the Merger in accordance with
Section 238 of the Cayman Islands Companies Law will have the right to receive payment
of the fair value of their Shares if the Merger is completed, but only if they deliver
to the Company, before the vote to authorize and approve the Merger is taken at the extraordinary
general meeting, a written objection to the Merger and subsequently comply with all procedures
and requirements of Section 238 of the Cayman Islands Companies Law for the exercise
of dissenters’ rights, which is attached as Annex D to the accompanying proxy statement.
The fair value of their Shares as determined under the Cayman Islands Companies Law could
be more than, the same as or less than the merger consideration they would receive pursuant
to the Merger Agreement if they do not exercise dissenters’ rights with respect
to their Shares. |
ADS holders will not have the right to exercise dissenters’
rights and receive payment of the fair value of the Shares underlying their ADSs. The ADS Depositary will not attempt to exercise
any dissenters’ rights with respect to any of the Shares that it holds, even if an ADS holder requests the ADS Depositary
to do so. ADS holders wishing to exercise dissenters’ rights must surrender their ADSs to the ADS Depositary, pay the ADS
Depositary’s fees required for the cancellation of their ADSs, provide instructions for the registration of the corresponding
Shares in the Company’s register of members, and certify that they have not given, and will not give, voting instructions
as to their ADS (or, alternatively, that they will not vote the corresponding Shares) before 5:00 p.m. (New York City time) on
March 1, 2016, and become registered holders of Shares before the vote is taken on the Merger at the extraordinary general meeting.
Thereafter, such former ADS holders must comply with the procedures and requirements for exercising dissenters’ rights with
respect to the Shares under Section 238 of the Cayman Islands Companies Law. If the Merger is not completed, the Company
would continue to be a public company in the United States and ADSs would continue to be listed on NASDAQ. Shares are not listed
and cannot be traded on any stock exchange other than NASDAQ, and in such case only in the form of ADSs. As a result, if a former
ADS holder has cancelled his, her or its ADSs to exercise dissenters’ rights and the Merger is not completed and such former
ADS holder wishes to be able to sell his, her or its Shares on a stock exchange, such former ADS holder would need to deposit
his, her or its Shares into the Company’s ADS program for the issuance of the corresponding number of ADSs, subject to the
terms and conditions of applicable law and the Deposit Agreement, including, among other things, payment of relevant fees of the
ADS Depositary for the issuance of ADSs and applicable Share transfer taxes (if any) and related charges pursuant to the Deposit
Agreement.
We encourage you to read the section of this proxy statement
entitled “Dissenters’ Rights” beginning on page 99 as well as “Annex D— Cayman Islands Companies
Law (2013 Revision)—Section 238” to this proxy statement carefully and to consult your own Cayman Islands legal
counsel if you desire to exercise your dissenters’ rights.
| Q: | If I own ADSs and seek to exercise dissenters’
rights, how do I surrender my ADSs for delivery of Shares, and when is the deadline for
completing the withdrawal of Shares? |
| A: | If you own ADSs and wish to exercise dissenters’ rights,
you must deliver the ADSs (or to the extent ADSs are certificated, the ADRs) to the ADS
Depositary for cancellation before 5:00 p.m. (New York City time) on March 1, 2016 together
with (a) delivery instructions for the corresponding Shares (including the name
and address of the person who will be the registered holder of such Shares), (b) payment
of the ADS cancellation fees (US$0.05 for each ADS) to be cancelled pursuant to the terms
of the Deposit Agreement and any applicable taxes and (c) a certification that you
either (i) held the ADSs as of the ADS Record Date and have not given, and will
not give, voting instructions to the ADS Depositary as to the ADSs being cancelled, or
have given voting instructions to the ADS Depositary as to the ADSs being cancelled but
undertake not to vote the corresponding Shares at the extraordinary general meeting or
(ii) did not hold the ADSs as of the ADS Record Date and undertakes not to vote
the corresponding Shares at the extraordinary general meeting. |
You must become a registered holder of the Shares underlying
your ADSs and deliver to the Company, before the vote is taken at the extraordinary general meeting, a written objection to the
Merger and subsequently comply with all procedures and requirements of Section 238 of the Cayman Islands Companies Law, which
is attached as Annex D to this proxy statement, for the exercise of dissenters’ rights.
| Q: | Do any of the Company's directors or executive
officers have interests in the Merger that may differ from those of other shareholders?
|
| A: | Yes. Some of the Company's directors or executive officers
have interests in the Merger that may differ from those of other shareholders. See “Special
Factors—Interests of Certain Persons in the Merger” beginning on page 65
for a more detailed discussion of how some of the Company’s directors and executive
officers have interests in the Merger that are different from, and/or in addition to,
the interests of the Company’s shareholders generally. The Special Committee considered
these interests in the Merger in its evaluation of the Transactions, and you should carefully
review this disclosure. |
| Q: | Will any proxy solicitors be used in connection
with the extraordinary general meeting? |
| A: | Yes. To assist in the solicitation of proxies, the Company
has engaged MacKenzie Partners, Inc. as its proxy solicitor. |
| Q: | Who can help answer my questions? |
| A: | If you have any questions or need assistance voting your
Shares, please call MacKenzie Partners, Inc., the Company’s proxy solicitor, toll-free
at 1-800-322-2885 (or +1-212-929-5500 outside of the United States) (call collect) or
via email at homeinns@mackenziepartners.com. |
In order for you to receive timely delivery of any additional
copy of this proxy statement or the accompanying proxy card in advance of the extraordinary general meeting, you must make your
request no later than five business days prior to the date of the extraordinary general meeting.
SPECIAL
FACTORS
Background of the Merger
Events leading to the execution of the Merger
Agreement described in this Background of the Merger occurred primarily in the PRC and Hong Kong. As a result, China Standard
Time is used for all dates and times given.
The board of directors and senior management
of the Company have periodically reviewed the Company’s long-term strategic plan with the goal of maximizing shareholder
value. As part of this ongoing process, the board of directors and senior management of the Company also have periodically reviewed
potential strategic alternatives that may be available to the Company.
BTG, through its wholly owned and controlled
subsidiary, Poly Victory, has held a minority ownership interest in the Company for over a decade since prior to the Company’s
initial public offering in 2006 and has the right to appoint two directors to the Board pursuant to the Company’s articles
of association. BTG has continuously evaluated the Company’s business, prospects and financial condition, market conditions
and other developments and factors BTG deemed relevant to the management of its interest in the Company.
As part of its ongoing relationship with the
Company, representatives of BTG regularly had discussions with representatives of the Company regarding the Company’s business,
prospects and financial condition as well as ways in which the existing partnership between BTG and the Company could be expanded.
In late April 2015, representatives of BTG
commenced discussions with Mr. Shen, co-founder and co-chairman of the Board of the Company and a director of Ctrip, Mr. Liang,
co-founder and director of the Company and chairman of the board of directors and chief executive officer of Ctrip, and Mr. Sun,
director and chief executive officer of the Company, about the competitive landscape in which the Company operates and potential
ways in which BTG could assist the Company in an increasingly competitive market. Representatives of BTG together with Mr. Shen,
Mr. Liang and Mr. Sun discussed, among other potential strategies to assist the Company in meeting competitive challenges, the
possibility of BTG increasing its ownership interest in the Company and the possibility of Ctrip and one or more of Mr. Shen,
Mr. Liang and Mr. Sun participating in the potential transaction. Mr. Shen, Mr. Liang and Mr. Sun expressed interest in considering
and evaluating a potential transaction but did not make any commitment with respect to their own possible participation in any
potential transaction.
Between late April and May 2015, representatives
of BTG and BTG Hotels, a PRC joint stock company listed on the Shanghai Stock Exchange in which BTG holds a 60.12% ownership interest,
approached Huatai United Securities Company Limited (“Huatai Securities”) and CITIC Securities Company Limited (“CITIC
Securities”) and asked them to potentially serve as financial advisors in connection with any potential transaction involving
BTG and/or BTG Hotels and the Company. From time to time thereafter, representatives of Huatai Securities and CITIC Securities
reviewed publicly available information about the Company and the PRC hotels industry and discussed with BTG and BTG Hotels the
feasibility of a potential transaction involving the Company and certain key considerations, including regulatory implications,
in order to assist them in their preliminary evaluation of potential transactions with respect to the Company. Representatives
of the Company provided representatives of BTG and BTG Hotels with certain information regarding the Company that either was publicly
available or had previously been provided to the Board to assist them in their preliminary evaluation.
The Buyer Group subsequently selected Huatai
Securities and CITIC Securities as their financial advisor in connection with the Proposed Transaction, primarily because of their
knowledge of BTG Hotels, the Company and the hotel industry in China, as well as their reputation and experience in providing
financial advice in mergers and acquisitions and other business combination and strategic transactions, in particular, involving
PRC-listed companies such as BTG Hotels. On December 6, 2015, the board of directors of BTG Hotels approved, among other matters,
the engagement of Huatai Securities and CITIC Securities as its financial advisor in connection with the Proposed Transaction,
while the formal engagement letter (including the compensation arrangement) has not been finalized as of the date of this proxy
statement.
On June 3, 2015, representatives of BTG, Huatai
Securities, CITIC Securities, international law firm Skadden, Arps, Slate, Meagher & Flom (“Skadden”) and PRC
law firm East & Concord Partners (“East & Concord”) held a meeting in Beijing to discuss and consider the
possibility of a potential transaction involving BTG and/or BTG Hotels and the Company, including the potential PRC and U.S. regulatory
approvals required for a potential transaction. Ms. May Wu, the Company’s chief strategy officer (“Ms. Wu”),
was invited to attend the meeting via telephone and answered certain factual questions regarding the Company. There was no conclusion
on the potential transaction by the end of this meeting.
On June 11, 2015, representatives of BTG, BTG
Hotels, Huatai Securities, CITIC Securities, Skadden, PRC law firm Jun He Law Offices (“Jun He”) and East & Concord
held a meeting in Beijing, and representatives of Ctrip, Mr. Shen, Mr. Liang and Mr. Sun were available via telephone when requested.
Ms. Wu was invited to attend the meeting via telephone and answered certain factual questions regarding the Company. During the
meeting, the Proposal Parties (comprised of BTG Hotels, Poly Victory, Ctrip, Mr. Shen, Mr. Liang, and Mr. Sun) decided to form
a buyer group to pursue a going private transaction through which the Proposal Parties would acquire all of the Shares not beneficially
owned by them.
During the meeting on June 11, 2015, the Proposal
Parties also discussed and considered a potential transaction, pursuant to which BTG Hotels would acquire a portion or all of
the equity interests in the Company held by the other Proposal Parties in exchange for equity interests in BTG Hotels, cash and/or
other forms of consideration (the “Consortium Transaction”), provided that the per Share consideration used in the
Consortium Transaction would be the same or lower than the consideration proposed to be paid to the beneficial owners of the Shares
of the Company which are not already owned by the Proposal Parties and the closing of the Consortium Transaction would be subject
to receipt of all required PRC governmental approvals.
The Buyer Group subsequently formally engaged
Huatai Securities and CITIC Securities as its financial advisors, Skadden as its U.S. legal advisor and Jun He as its PRC legal
advisor. The Proposal Parties other than BTG Hotels and Poly Victory subsequently engaged East & Concord as their PRC legal
advisor.
Also on June 11, 2015, the Proposal Parties
sent the Company a preliminary non-binding proposal, dated June 11, 2015 (the “Proposal Letter”). In the Proposal
Letter, the Proposal Parties indicated their interest in acquiring all of the outstanding Shares of the Company not already owned
by the Proposal Parties for US$32.81 in cash per ADS, or US$16.405 in cash per Share (the “Proposed Transaction”).
The Proposal Letter also noted that (i) as of the date of the Proposal Letter, the Proposal Parties beneficially owned an aggregate
of approximately 35% of all of the Company’s issued and outstanding Shares, (ii) the Proposal Parties intended to enter
into a consortium agreement setting forth their agreement to work exclusively with each other in pursuing the Proposed Transaction,
(iii) the Proposal Parties intended to finance the Proposed Transaction with a combination of debt and/or equity financing, and
(iv) BTG Hotels may enter into an agreement with the other Proposal Parties in connection with the potential Consortium Transaction.
Following the Company’s receipt of the
Proposal Letter, on June 11, 2015, the Board held a meeting to discuss the Proposal Letter and determined to establish a committee
of independent and disinterested directors (the “Special Committee”), consisting of Messrs. Kenneth Gaw, Terry
Yongmin Hu and Arthur M. Wang, to consider and evaluate any proposal received from the Proposal Parties in connection with the
Proposal Letter (the “Proposal”). On the same date, the Company issued a press release regarding its receipt
of the Proposal Letter and the formation of the Special Committee to consider the Proposed Transaction, and furnished the press
release to the SEC as an exhibit to a Current Report on Form 6-K.
Pursuant to the Board resolutions establishing
the Special Committee, the Special Committee would have the power to (i) make such investigation of the Proposal, the Proposed
Transaction and any matters relating thereto as the Special Committee, in its sole discretion, deemed appropriate, (ii) evaluate
the terms of the Proposal, (iii) discuss and negotiate with the Buyer Group and its representatives any terms of the Proposed
Transaction and implement the Proposed Transaction as the Special Committee deemed appropriate, (iv) explore and pursue any alternatives
to the Proposed Transaction as the Special Committee, in its sole discretion, deemed appropriate, including maintaining the Company’s
current status as a public company or a potential change of control transaction involving an alternative buyer (an “Alternative
Transaction”), (v) if and when appropriate, negotiate definitive agreements with respect to the Proposed Transaction or
any Alternative Transaction, the execution and delivery of any such agreement being subject, however, to the prior written approval
of the Board, (vi) report to the Board the recommendations and conclusions of the Special Committee with respect to the Proposed
Transaction or any Alternative Transaction and any recommendation as to whether the final terms of the Proposed Transaction or
any Alternative Transaction are fair to and in the best interests of the shareholders of the Company (and should be approved by
the Board and, if applicable, by the Company’s shareholders), and any determinations and recommendations with respect to
any other matters requested by the Board, and (vii) retain, in its sole discretion, and on terms and conditions acceptable to
the Special Committee, such advisors, including legal counsel, financial advisors and outside consultants, as the Special Committee
in its sole discretion deemed appropriate to assist the Special Committee in discharging its responsibilities.
From June 11, 2015 through June 17, 2015, the
Special Committee considered proposals from several prospective U.S. legal advisors. On June 17, 2015, the Special Committee determined
that Simpson Thacher & Bartlett LLP (“Simpson Thacher”) would act as U.S. legal counsel to the Special Committee,
subject to the negotiation of the engagement letter, after taking into account, among other factors, Simpson Thacher’s leading
expertise, extensive experience in mergers and acquisitions transactions and significant involvement in precedent going private
transactions involving U.S.-listed China-based companies.
From June 17, 2015 through July 19, 2015, representatives
of Simpson Thacher held a number of teleconferences and other communications with members of the Special Committee to provide
the Special Committee an overview of the procedures, process and duties of the Special Committee as well as best practices in
connection with a potential going private transaction as contemplated by the Proposal Letter.
From June 17, 2015 through June 19, 2015, the
Special Committee considered proposals from multiple investment banks that had expressed interest in being considered for the
role of financial advisor to the Special Committee and, on June 19, 2015, held in-person interviews with certain candidates.
On June 22, 2015, the Proposal Parties (other
than BTG Hotels) and certain of their affiliates filed with the SEC a statement on Schedule 13D reporting, among other things,
the submission of the Proposal Letter to the Board and the possibility of the potential Consortium Transaction.
On June 23, 2015, the Company sent a draft
confidentiality agreement, which included a standstill provision, to Huatai Securities.
On June 26, 2015, the Special Committee selected
Credit Suisse Securities (USA) LLC (“Credit Suisse”) as its financial advisor, subject to the negotiation of the engagement
letter with Credit Suisse. The Special Committee’s decision was based on, among other factors, Credit Suisse’s reputation,
its knowledge of the Company and its industry, its experience in advising committees of independent directors in business combinations
and other strategic transactions, and its experience in U.S. “going-private” transactions.
During the period from the announcement of
the Proposal on June 11 to June 29, 2015, Mr. Sun approached certain members of the management of the Company, including Ms. Wu,
Ms. Cathy Xiang Rong Li, the Company’s chief financial officer (“Ms. Li”), and Mr. Zong, president and chief
operating officer, and invited them to participate in the potential Consortium Transaction. No financial terms of the potential
Consortium Transaction were proposed or discussed at this time. Ms. Wu and Mr. Zong indicated that they might consider and evaluate
the transaction but had not made any decision at the time with respect to their respective possible participation in the potential
Consortium Transaction, and Ms. Li indicated that she was not interested in participating in the potential Consortium Transaction.
Beginning in early July 2015, representatives
of BTG Hotels held preliminary discussions with multiple potential funding sources regarding the debt financing for the Proposed
Transaction.
On July 5, 2015, the Company contacted O’Melveny
& Myers LLP (“O’Melveny”) regarding the Proposed Transaction. On July 8, 2015, O’Melveny was retained
as U.S. legal counsel to the Company in connection with the Proposed Transaction.
On July 6, 2015, following negotiations between
Simpson Thacher and Skadden, the Company entered into a confidentiality agreement, dated as of June 30, 2015, with the Proposal
Parties, which included a standstill provision in customary form. BTG Hotels commenced its due diligence investigation with respect
to the Company in the beginning of July 2015.
On July 14, 2015, the Special Committee, by
unanimous written resolution, approved the retention of Credit Suisse as its financial advisor, Simpson Thacher as its U.S. legal
counsel, Maples and Calder (“Maples”) as its Cayman Islands counsel, and Commerce & Finance Law Offices (“C&F”)
as its PRC counsel, in connection with its review and evaluation of the Proposed Transaction. Maples and C&F were also retained
to serve as the Company’s Cayman Islands and PRC counsel, respectively, in connection with the Proposed Transaction. The
Company subsequently issued a press release announcing the appointment of advisors by the Special Committee, and furnished the
press release as an exhibit to a current report on Form 6-K.
On July 17, 2015, in order for BTG Hotels to
meet PRC regulatory disclosure requirements applicable to it as a company listed on the Shanghai Stock Exchange and prepare disclosure
documents in connection with a shareholders meeting of BTG Hotels which would be required to vote on the Proposed Transaction,
the Proposal Parties requested that the Company provide certain financial information of the Company prepared in accordance with
the generally acceptable accounting principles of the PRC (“PRC GAAP”) and/or financial data required for the reconciliation
of the Company’s financial statements from U.S. generally accepted accounting principles (“U.S. GAAP”) to PRC
GAAP (collectively, the “PRC GAAP financial information”).
Between late June and mid-July 2015, representatives
of BTG, BTG Hotels, the other Proposal Parties, Huatai Securities, CITIC Securities, Jun He and East & Concord had various
discussions on the structure of the potential Consortium Transaction and determined that their preferred structure for the Consortium
Transaction would be a share exchange pursuant to which BTG Hotels would issue certain common shares of BTG Hotels to BTG in exchange
for all of the issued and outstanding shares of Poly Victory held by BTG and to the Rollover Shareholders in exchange for certain
of their Shares (the “Share Exchange”), subject to the negotiation of the exchange ratio and other terms of a definitive
agreement related to the Share Exchange.
On July 20, 2015, the Special Committee held
a telephonic meeting, attended by representatives of Simpson Thacher and Credit Suisse. During the meeting, the Special Committee,
representatives of Simpson Thacher and representatives of Credit Suisse discussed, among other matters, the status of the Proposed
Transaction, including the Buyer Group’s due diligence investigation and proposed debt financing arrangement, the Buyer
Group’s request for PRC GAAP financial information, as well as the need for the Special Committee to understand the proposed
mechanism for the Share Exchange. The Special Committee expressed their desire to ensure that the Proposed Transaction would not
be conditioned upon the receipt of any regulatory approval required in connection with the Share Exchange. The Special Committee,
representatives of Simpson Thacher and representatives of Credit Suisse also discussed the likelihood of receiving any competing
bids for the Company in light of the Buyer Group’s aggregate beneficial ownership of approximately 35% of the Company’s
total issued and outstanding Shares and the Buyer Group’s indication that they would work together on an exclusive basis
in pursuing the Proposed Transaction. After discussion, the members of the Special Committee instructed Credit Suisse to prepare
for a market check to determine whether any other potential buyers might be interested in a possible transaction with the Company.
On July 21, 2015, representatives of Simpson
Thacher and representatives of Skadden participated in a conference call to discuss, among other matters, the Buyer Group’s
request for PRC GAAP financial information, the proposed structure of the Proposed Transaction, the proposed structure of the
Share Exchange, the Buyer Group’s intention to enter into a consortium agreement and support agreement, the requirement
to obtain the approval of the BTG Hotels’ shareholders, and the respective regulatory filings and approvals required for
the Proposed Transaction and for the Share Exchange. Representatives of Simpson Thacher stressed the fact that the Special Committee
would not agree to condition the Proposed Transaction on the consummation of the Share Exchange or the receipt of regulatory approvals
required solely for the Share Exchange.
On July 28, 2015, the Special Committee held
a telephonic meeting, attended by representatives of Simpson Thacher and Credit Suisse. During the meeting, the Special Committee,
representatives of Credit Suisse and representatives of Simpson Thacher discussed, among other matters, (i) the Buyer Group’s
proposed structure of the Proposed Transaction and the Share Exchange, and potential alternatives to such proposed structure,
including the feasibility of potentially requiring BTG Hotels and BTG to offer other shareholders of the Company the opportunity
to participate in the Share Exchange, (ii) BTG Hotels’ public announcement regarding its intention to enter into the Proposed
Transaction and the Share Exchange and BTG’s intention to issue certain debt securities which may be exchangeable into BTG
Hotels shares (the “Exchangeable Bonds”), (iii) plans for conducting a market check, (iv) the status of preparation
of the financial projections by the Company’s management and (v) the status of the due diligence process. Following the
Special Committee meeting, Credit Suisse commenced the market check process.
Later that day, Huatai Securities sent Credit
Suisse a memorandum setting forth an overview of the proposed structure and indicative timetable for the Proposed Transaction
and the Share Exchange. The memorandum of Huatai Securities and CITIC Securities comprised of a preliminary discussion of the
proposed transaction structure of the Proposed Transaction and the Share Exchange and the transaction process, and did not contain
any financial or valuation analysis with respect to the Proposed Transaction or the Company.
On August 4, 2015, the Buyer Group formally
engaged UBS AG Hong Kong Branch (“UBS”) as its international financial advisor.
On August 5, 2015, the Special Committee held
a telephonic meeting, attended by representatives of Simpson Thacher and Credit Suisse. During the meeting, the Special Committee,
representatives of Credit Suisse and representatives of Simpson Thacher discussed, among other matters, the status and process
for the preparation of the financial projections by the Company’s management, the status of the market check by Credit Suisse,
and the Buyer Group’s proposed structure of the Proposed Transaction and the Share Exchange, and BTG’s potential issuance
of the Exchangeable Bonds.
On August 7, 2015, Credit Suisse and Simpson
Thacher sent a memorandum to Huatai Securities, CITIC Securities and Skadden which sets forth certain preliminary issues and questions
related to the Proposed Transaction and the Share Exchange, including, among other matters, the Special Committee’s position
that the closing of the Proposed Transaction would not be conditioned upon the receipt of any regulatory approvals required by
the Buyer Group in connection with the Share Exchange and certain questions related to the proposed exchange ratio and other details
related to the Share Exchange, as well as issues and questions related to BTG’s potential issuance of the Exchangeable Bonds.
From August 7, 2015 through August 11, 2015,
members of the Special Committee had various conversations via telephone with the Proposal Parties during which the Proposal Parties
confirmed that they were only interested in pursuing the Proposed Transaction and did not intend to sell their Shares other than
pursuant to the Proposed Transaction and potential Share Exchange.
On August 11, 2015, the Special Committee held
a telephonic meeting, attended by representatives of Simpson Thacher and Credit Suisse. During the meeting, Credit Suisse updated
the Special Committee on the status of the market check. In addition, the Special Committee discussed the Proposal Parties’
request that the Company prepare and provide the requested PRC GAAP financial information. After discussions, the Special Committee
determined to direct the Company’s management to prepare the requested PRC GAAP financial information for the Proposal Parties
and cooperate in the preparation of such financial information by the independent accounting firm engaged by the Buyer Group,
provided that any use or disclosure of such financial information by the Buyer Group was subject to the prior written consent
of the Company and the Special Committee, and that the Buyer Group indemnify the Company and its directors against any potential
claims or damages resulting from the Buyer Group’s use or disclosure of such financial information.
On August 12, 2015, representatives of Simpson
Thacher and Skadden and, on August 13, 2015, representatives of Simpson Thacher, Skadden, Credit Suisse and UBS, held telephonic
meetings to discuss the preliminary issues and questions from the Special Committee, the Buyer Group’s proposed debt financing
and the exclusivity arrangements among members of the Buyer Group. During these discussions, representatives of Skadden and UBS
communicated the Buyer Group’s unwillingness to accept the Special Committee’s request for BTG Hotels to offer shareholders
of the Company other than the Rollover Shareholders the opportunity to participate in the Share Exchange. Representatives of Skadden
and UBS discussed (i) the requirements of PRC law that would prohibit or significantly restrict individuals who are not PRC citizens
and entities that are not incorporated in the PRC from acquiring listed A-shares of BTG Hotels to be issued in the Share Exchange,
(ii) the fact that an offering of shares of BTG Hotels to the shareholders of the Company would require BTG Hotels to file a registration
statement under the Securities Act and become subject to ongoing reporting obligations as a public company in the United States,
which would likely delay and create uncertainties to the transaction process and impose significant costs on BTG Hotels and other
participants in the Proposed Transaction, and (iii) the fact that, if other shareholders of the Company were offered the opportunity
to participate in the Share Exchange, the Merger would necessarily be conditioned upon receipt of the required PRC regulatory
approvals related to the Share Exchange and the Share Exchange itself.
On August 16, 2015, Skadden sent a draft letter
agreement related to the preparation and disclosure of PRC GAAP financial information to Simpson Thacher. Thereafter, representatives
of Simpson Thacher and Skadden engaged in various discussions regarding the draft letter agreement, including but not limited
to the scope of PRC GAAP financial information, the scope of the indemnity from the Buyer Group and the Buyer Group’s agreement
to bear the expenses related to the preparation of the PRC GAAP financial information. As part of these discussions, Simpson Thacher
communicated to Skadden the request that the Buyer Group indemnify the officers of the Company, in addition to the Company and
its directors, against any potential claims or damages resulting from the Buyer Group’s use or disclosure of PRC GAAP financial
information.
On August 18, 2015, the Special Committee held
a telephonic meeting, attended by representatives of Simpson Thacher and Credit Suisse. During the meeting, the Special Committee,
representatives of Credit Suisse and representatives of Simpson Thacher discussed, among other matters, the status of the market
check by Credit Suisse, the status of preparation of the financial projections by the Company’s management, and the Buyer
Group’s feedback on the preliminary key issues identified by the Special Committee with respect to the Proposed Transaction,
including the Buyer Group’s oral confirmation that BTG’s proposed issuance of the Exchangeable Bonds would be a transaction
independent from the Proposed Transaction and that the BTG Hotels shares to be issued to the Rollover Shareholders in the Share
Exchange would be subject to a lock-up period of 12 to 36 months. Representatives of Credit Suisse and Simpson Thacher also discussed
with the Special Committee the Buyer Group’s unwillingness to accept the proposal that BTG Hotels offer other shareholders
of the Company the opportunity to participate in the Share Exchange and the Buyer Group’s considerations behind its position.
The Special Committee also discussed the potential impact of such lock-up period and the volatility of the A-share market on the
potential value of BTG Hotels shares to be received by the Rollover Shareholders in exchange for their Rollover Shares.
On or about August 19, 2015, Ms. Wu and Ms.
Li provided the Special Committee with drafts of financial projections of the Company for the fiscal years ending December 31,
2015 through 2020. The drafts separated the comments and inputs from Mr. Sun. In preparing the draft financial projections that
were provided to the Special Committee on August 19, 2015, the Company’s management excluded certain subsidies that the
Company had historically received from the PRC government in light of indications at the relevant time from certain PRC governmental
authorities regarding the limitations on the future availability of such subsidies.
In mid-August 2015, based on preliminary discussions
with the potential debt financing sources, BTG Hotels identified two candidates, including Industrial and Commercial Bank of China
Limited, New York Branch (the “Lead Arranger”) and one other China-based commercial bank, as the most feasible potential
sources to provide debt financing for the Proposed Transaction. BTG Hotels and its representatives then engaged in further negotiations
with these potential debt financing sources on the key terms of the debt financing.
On August 21, 2015, Skadden sent to Credit
Suisse and Simpson Thacher written responses from the Buyer Group, which set forth (i) a list of PRC regulatory approvals required
for the consummation of the Proposed Transaction and the Share Exchange, including the proposed timing for submission of applications
for and receipt of such regulatory approvals, and (ii) confirmation that BTG’s proposed issuance of the Exchangeable Bonds
would be independent from the Proposed Transaction and the Share Exchange and would not be a condition to the consummation of
the Proposed Transaction and the Share Exchange.
On August 24, 2015, the Special Committee held
a telephonic meeting, attended by Ms. Wu, Ms. Li, representatives of Credit Suisse and representatives of Simpson Thacher. Ms.
Li presented to the Special Committee the drafts of the financial projections, and explained the major underlying assumptions
behind the draft financial projections as well as the separate comments and inputs from Mr. Sun. See “— Certain Financial
Projections” beginning on page 45 for a summary of the major underlying assumptions behind the financial projections provided
by the Company’s management.
On August 25, 2015, Credit Suisse sent UBS
and Skadden additional follow-up questions related to the Proposed Transaction, the Share Exchange and BTG’s proposed issuance
of the Exchangeable Bonds.
Also on August 25, 2015, the Special Committee
held a telephonic meeting, attended by representatives of Simpson Thacher and Credit Suisse. During the meeting, representatives
of Credit Suisse provided an update on the market check and responses from the Buyer Group on the transaction structure. The Special
Committee discussed, among other matters, the recent decline in the Company’s share price, the volatility of the A-share
market and the U.S. capital markets and the potential impact of such market volatility on the Proposed Transaction and the Company
going forward. In addition, the Special Committee approved the engagement of Fangda Partners (“Fangda”) as its PRC
counsel in connection with the Proposed Transaction.
On August 27, 2015, Credit Suisse received
a preliminary non-binding proposal letter, dated August 26, 2015, from a publicly-traded company with operations in the same industry
as the Company (referred to as “Company A”) for the acquisition of all of the Company’s issued and outstanding
Shares for US$35.80 per ADS in cash (the “Proposed Company A Transaction”).
On August 31, 2015, the Special Committee held
a telephonic meeting, attended by representatives of Simpson Thacher and Credit Suisse, and discussed, among other matters, the
key differences between the Proposed Transaction and the Proposed Company A Transaction, the potential financing and regulatory
approvals required for the Proposed Company A Transaction, the ability of Company A to proceed with the Proposed Company A Transaction
in light of the blocking vote held by the Proposal Parties, and the next steps for the Special Committee to investigate and evaluate
the feasibility of the Proposed Company A Transaction, including the need for a confidentiality agreement containing standstill
restrictions.
On the same day, Simpson Thacher sent a draft
confidentiality agreement to Company A in substantially the same form as the confidentiality agreement executed by the Proposal
Parties.
On September 1, 2015, Skadden sent to Simpson
Thacher and Credit Suisse written responses to the follow-up questions from Simpson Thacher and Credit Suisse on August 25, 2015,
which reiterated that BTG’s proposed issuance of the Exchangeable Bonds would be independent from the Proposed Transaction
and the Share Exchange and also set forth additional details on the Share Exchange, the Buyer Group’s plans for obtaining
the PRC regulatory approvals required for the consummation of the Proposed Transaction and the Share Exchange, respectively, as
well as the Buyer Group’s confirmation that the closing of the Proposed Transaction would not be conditioned upon the closing
of the Share Exchange or the receipt of any regulatory approvals required by the Buyer Group in connection with the Share Exchange.
On September 2, 2015, Skadden sent an initial
draft of the merger agreement to Simpson Thacher. Simpson Thacher noted certain key issues raised by the initial draft of the
merger agreement, including a proposed reverse termination fee of US$5 million in the event of termination due to breach of the
merger agreement by Holdco or Merger Sub, absence of a reverse termination fee payable by Holdco in the event of termination due
to failure to obtain required PRC regulatory approvals or BTG Hotels shareholder approval, a termination fee payable by the Company
in the event of failure to obtain BTG Hotels shareholders’ approval and certain other circumstances, certain conditions
to the obligations of Holdco and Merger Sub to close the Proposed Transaction, certain restrictions on the ability of the Company
to provide information and enter into discussions in connection with unsolicited third party proposals related to a competing
transaction between signing and closing, inability of the Board or Special Committee to effect a change of recommendation in the
absence of a “Superior Proposal,” absence of a “majority of the minority” of Company shareholder approval
requirement, absence of a specific performance right of the Company against Holdco or Merger Sub to close the Proposed Transaction,
rollover of unvested equity awards into restricted cash awards, absence of various exceptions and qualifications to the representations
and warranties and certain restrictions on the Company’s operations between signing and closing.
On the same day, representatives of Simpson
Thacher had a telephone conversation with outside legal counsel to Company A regarding the draft confidentiality agreement and
the Proposed Company A Transaction, including Company A’s unwillingness to agree to any standstill restrictions.
Also on September 2, 2015, a member of the
Special Committee and Mr. Shen had a telephone conversation during which Mr. Shen requested that the Special Committee consider
the adoption of a “shareholder rights plan” and informed such member of the Special Committee of a telephone call
made by a representative of Company A to a representative of BTG on September 2, 2015, the content of which telephone call was
subsequently summarized in an e-mail from Skadden to Simpson Thacher on September 8, 2015. During such telephone call, a representative
of Company A indicated to a representative of BTG that certain affiliates of such representative of Company A had acquired ADSs
on the open market representing slightly less than 5% of the Company’s total issued and outstanding Shares, that such representative
of Company A had no real interest in pursuing the Proposed Company A Transaction and that such representative’s only intent
was to request the Buyer Group to purchase the ADSs held by affiliates of such representative of Company A at a price higher than
the price set forth in the Proposal Letter.
On September 4, 2015, the Special Committee
held a telephonic meeting, attended by representatives of Simpson Thacher and Credit Suisse. During the meeting, the Special Committee,
representatives of Credit Suisse and representatives of Simpson Thacher discussed, among other things, the genuineness of Company
A’s intention to pursue the Proposed Company A Transaction, the feasibility of the Proposed Company A Transaction, the unwillingness
of Company A to enter into the confidentiality agreement including the standstill provision, and the necessity of the adoption
of a “shareholder rights plan” at that time in light of the Proposed Company A Transaction and the Proposed Transaction.
The Special Committee determined that the adoption of a “shareholder rights plan” by the Company was not warranted
at that time, but noted that it would re-evaluate this potential action in the event of a change in circumstances based on actions
by Company A or any other party.
On September 7, 2015, the Special Committee
held a telephonic meeting, attended by representatives of Simpson Thacher and Credit Suisse. During the meeting, the Special Committee,
representatives of Credit Suisse and representatives of Simpson Thacher discussed, among other matters, an update on the market
check (including the fact that, other than Company A, no other potential buyer had indicated an interest in making a proposal
or offer for a transaction with the Company), the Buyer Group’s latest feedback with respect to the Proposed Transaction,
the Share Exchange and BTG’s proposed issuance of the Exchangeable Bonds (including that (i) BTG’s proposed issuance
of the Exchangeable Bonds would be independent from the Proposed Transaction and would not be a condition to the closing of the
Proposed Transaction or the proposed Share Exchange, (ii) the closing of the Proposed Transaction and the closing of the proposed
Share Exchange would not be cross-conditional, and (iii) the Buyer Group would submit certain of the regulatory filings to PRC
regulators as a combined filing for both the Proposed Transaction and the proposed Share Exchange in light of the need to fully
inform the relevant PRC regulators upfront of all of the relevant proposed transactions related to the Company), and the draft
financial projections prepared by the Company’s management. The Special Committee discussed the need to continue to engage
with Company A to pursue the Proposed Company A Transaction if Company A genuinely intended to proceed with negotiations. Representatives
of Simpson Thacher also reviewed the key issues identified in the draft merger agreement received on September 2, 2015 from Skadden.
Later that day, representatives of Credit Suisse
had a telephone conversation with representatives of Company A and its outside legal counsel, during which Company A reaffirmed
its interest in the Proposed Company A Transaction, but indicated (i) its concern regarding the Buyer Group’s ability
to block the Proposed Company A Transaction,(ii) its unwillingness to reveal the names of the potential banks that would provide
the financing for the Proposed Company A Transaction and (iii) its unwillingness to sign a confidentiality agreement with the
Company that contained a standstill provision. Representatives of Company A also denied any knowledge of the telephone conversation
on September 2, 2015 between a representative of Company A and a representative of BTG.
On September 11, 2015, Simpson Thacher sent
Skadden additional follow-up questions related to the PRC regulatory approvals required in connection with the Proposed Transaction
and the Share Exchange, and the representatives of Simpson Thacher, Fangda and Skadden held a teleconference on September 14,
2015 to discuss these questions.
On September 15, 2015, the Special Committee
held a telephonic meeting, attended by representatives of Simpson Thacher and Credit Suisse. During the meeting, the Special Committee,
representatives of Credit Suisse and representatives of Simpson Thacher discussed, among other things, (i) the genuineness and
feasibility of the Proposed Company A Transaction and the next steps for the Special Committee to evaluate the Proposed Company A
Transaction, (ii) the Buyer Group’s proposed debt financing for the Proposed Transaction, including the potential conditions
and commitment period for such financing, (iii) the status of the draft financial projections prepared by the Company’s
management, and (iv) the PRC regulatory approvals required in connection with the Proposed Transaction, including the status of
pre-signing PRC regulatory approvals obtained by BTG Hotels, the proposed timing of the submission of applications for other PRC
regulatory approvals and the feasibility of separate applications for the Proposed Transaction and the Share Exchange to the PRC
regulatory authorities. Representatives of Simpson Thacher reviewed with the Special Committee the draft merger agreement received
on September 2, 2015 and discussed with the Special Committee the proposed positions of the Special Committee with respect to
certain key issues. Following discussions, the Special Committee determined to propose that the amounts of the Company termination
fee and Buyer Group reverse termination fee should be equal to 2.0% and 6.5% of the Company’s total equity value, respectively,
and that the reverse termination fee would be payable by the Buyer Group in the event of termination due to the Buyer Group’s
breach of the merger agreement, failure to obtain required PRC regulatory approvals or failure to obtain BTG Hotels’ shareholder
approval. Later that day, Simpson Thacher sent a revised draft merger agreement to Skadden.
On September 16, 2015, Skadden sent written
responses to the follow-up questions circulated by Simpson Thacher and Fangda on September 11, 2015, which set forth additional
details on the Buyer Group’s plans for obtaining the PRC regulatory approvals required for the consummation of the Proposed
Transaction and the Share Exchange, and noted that BTG Hotels was in discussions with certain PRC regulators about whether BTG
would be required under applicable PRC regulations to recuse itself from voting on the Proposed Transaction at the BTG Hotels
shareholders meeting.
On September 17, 2015, representatives of Company
A indicated to representatives of Credit Suisse via telephone that it had determined to withdraw its non-binding proposal but
would potentially consider exploring an offer to acquire the Company if the Buyer Group determined not to proceed with the Proposed
Transaction.
Between mid-July and mid-September 2015, BTG
Hotels and its representatives continued to negotiate with the two potential debt financing sources on the key terms of the debt
financing for the Proposed Transaction. After comparing and analyzing the terms they proposed, BTG Hotels considered the Lead
Arranger as the preferred potential debt financing source.
On September 21, 2015, the Special Committee
held a telephonic meeting, attended by representatives of Simpson Thacher and Credit Suisse. Representatives of Credit Suisse
reported to the Special Committee Company A’s decision to withdraw its non-binding proposal and confirmed that, as
previously reported, no other person had indicated an interest in making a proposal or offer for a transaction involving the Company.
The Special Committee discussed with representatives of Credit Suisse the draft financial projections prepared by the Company’s
management. Later that day, Credit Suisse received the written withdrawal letter from Company A.
On September 22, 2015, representatives of Simpson
Thacher, O’Melveny and Skadden held a teleconference to discuss certain terms of the merger agreement, including certain
representations and warranties to be made by the Company and certain covenants restricting the Company and its subsidiaries from
taking certain actions between the signing of the merger agreement and the closing of the Merger. In addition, on September 22,
2015, management of the Company provided to the Special Committee slightly revised financial projections which were updated to
include projected receipt of certain subsidies that the Company had historically received from the PRC government. Other than
the inclusion of amounts associated with certain PRC government subsidies, no other changes were made to the financial projections
that were provided to the Special Committee on August 19, 2015. The Company’s management decided to revise the financial
projections to include these subsidies solely due to its growing confidence that such subsidies would continue to be available
based on various indications to such effect from the various local branches of the PRC government after August 19, 2015. The amounts
associated with such PRC subsidies were not material (with adjustments to the financial projections to account for such subsidies
not exceeding RMB15 million (or approximately US$2.3 million) in any relevant year), and the inclusion of such PRC subsidies into
the financial projections did not change the Company’s estimated financial results from operations during any of the relevant
years (as such amounts were classified as non-operating income).
On September 29, 2015, Skadden provided a revised
draft of the merger agreement to Simpson Thacher. Following review of the revised draft, Simpson Thacher provided to the Special
Committee a written summary of certain key issues raised by the revised draft of the merger agreement.
On October 5, 2015, the Special Committee held
a telephonic meeting, attended by representatives of Simpson Thacher and Credit Suisse. Representatives of Credit Suisse reviewed,
among other matters, an update on the status of the Buyer Group’s proposed debt financing for the Proposed Transaction.
Representatives of Simpson Thacher discussed with the Special Committee the key open issues raised by the revised draft of the
merger agreement received from Skadden.
On October 9, 2015, Simpson Thacher provided
a revised draft of the merger agreement to Skadden.
On October 12, 2015, representatives of Simpson
Thacher and Skadden held a telephonic meeting to negotiate the merger agreement, including the provisions related to triggering
events for and amounts of the reverse termination fee, a potential guarantee from BTG Hotels and BTG for the obligations of Holdco
and Merger Sub under the merger agreement, the potential right of the Company to enforce the obligations of Holdco and Merger
Sub through specific performance, the standard under which the Special Committee and the Board could change their recommendation
of the Proposed Transaction, the requirement for a “majority of the minority” of the Company’s shareholders
to approve the Proposed Transaction and the Special Committee’s requirement for BTG Hotels to indemnify the Company and
its directors and officers for any losses resulting from BTG Hotels’ disclosure of Company-related information. During the
call, representatives of Skadden also informed representatives of Simpson Thacher that, based on the advice of the Buyer Group’s
PRC legal advisors, under applicable PRC laws and regulations, BTG would be considered an interested party of BTG Hotels in connection
with the Proposed Transaction and, as such, would recuse itself from voting on the Proposed Transaction at the meeting of the
BTG Hotels shareholders to approve the Proposed Transaction.
On October 14, 2015, representatives of Simpson
Thacher, O’Melveny and Skadden held a teleconference to negotiate certain terms of the merger agreement, including certain
representations and warranties to be made by the Company and certain covenants restricting the Company and its subsidiaries from
taking certain actions between the signing of the merger agreement and the closing of the merger.
Between mid-September and mid-October 2015,
BTG Hotels and its representatives continued to negotiate with the Lead Arranger on the debt commitment letter to be issued by
the Lead Arranger setting forth its commitment to provide debt financing for the Proposed Transaction.
On October 23, 2015, Skadden provided a revised
draft of the merger agreement to Simpson Thacher.
Later that day, Skadden also sent to Simpson
Thacher (i) a draft support agreement pursuant to which the Rollover Shareholders would agree to vote their Shares in favor of
the Proposed Transaction and receive no cash consideration for the Rollover Shares in the Proposed Transaction and would agree
that their Rollover Shares will convert into ordinary shares of the surviving company in the Proposed Transaction, and (ii) a
draft debt commitment letter to be issued by the Lead Arranger setting forth its commitment to provide debt financing up to a
maximum principal amount of US$1.1 billion for the Proposed Transaction.
On October 26, 2015, representatives of Simpson
Thacher and Skadden held a telephonic meeting to discuss certain terms of the merger agreement, including, among other things,
the potential right of the Company to seek specific performance of the Proposed Transaction in the event of a debt financing failure,
the amount of the reverse termination fee payable for failure to obtain BTG Hotels’ shareholder approval or requisite PRC
regulatory approvals, the standard under which the Special Committee and the Board could change their recommendation of the Proposed
Transaction, the treatment of unvested share incentive awards in the Proposed Transaction, the termination date of the merger
agreement and the indemnity from BTG Hotels to the Company and its directors and officers for any losses resulting from BTG Hotels’
disclosure of Company-related information. Representatives of Skadden stated that the amount of reverse termination fee in the
draft merger agreement was proposed in light of communications from certain PRC regulators that BTG Hotels should not agree to
a significant amount of reverse termination fee as a result of termination for failure to obtain the approval of the BTG Hotels’
shareholders or failure to obtain required PRC regulatory approvals. At the request of Simpson Thacher, representatives of Skadden
also provided an update on the status of the negotiation of the potential Share Exchange.
On October 30, 2015, the Special Committee
held a telephonic meeting, attended by representatives of Simpson Thacher and Credit Suisse. During the meeting, the Special Committee
discussed with representatives of Credit Suisse the feasibility of and strategies for obtaining a higher offer price from the
Buyer Group. The Special Committee further discussed with representatives of Simpson Thacher and Credit Suisse the feasibility
of re-opening the discussion with the Buyer Group on providing shareholders of the Company other than the Rollover Shareholders
the opportunity to participate in the Share Exchange and noted the Buyer Group’s position that such request would not be
practical under applicable U.S. and PRC laws and regulations and that it was highly unlikely that the Buyer Group would change
its position. Simpson Thacher discussed with the Special Committee certain key issues raised by the revised draft of the merger
agreement received on October 23, 2015. Representatives of Credit Suisse reviewed the Company’s stock price performance
since the date of the Proposal Letter, and the Special Committee discussed, among other matters, the Buyer Group’s proposed
price, the PRC macroeconomic environment and pressure on the industry sector in China since the date of the Proposal Letter.
Over the course of October 30, 2015 through
November 3, 2015, members of the Special Committee held various discussions with representatives from the Buyer Group, during
which they discussed, among other matters, certain key issues identified by the Special Committee, including: (i) the purchase
price proposed by the Buyer Group, (ii) the proposed reverse termination fee amount, (iii) the proposed “majority of minority”
vote requirement, (iv) the potential right of the Company to seek specific performance for failure to close the Proposed Transaction
and (v) the indemnity from BTG Hotels to the Company and its directors and officers for losses resulting from BTG Hotels’
disclosure of Company-related information.
On November 4, 2015, members of the Special
Committee and representatives of Simpson Thacher held a telephonic meeting to discuss possible responses of the Special Committee
on the key issues and other outstanding issues in the revised draft of the merger agreement received on October 23, 2015. The
Special Committee and representatives of Simpson Thacher also discussed potential consequences to the Company if the Special Committee
failed to reach agreement with the Buyer Group on the key outstanding issues or determined to recommend against the Proposed Transaction,
including among other issues, the potential impact on the trading price of the Company’s ADSs, the possible impact on the
Company’s public shareholders and future business operations, the fact that the Buyer Group had indicated its intention
to potentially proceed with the Share Exchange without the completion of the Proposed Transaction, the fact that the Buyer Group
currently controlled a majority of the Board, the absence of any interest, proposals or offers from the potential buyers contacted
by Credit Suisse or any unsolicited third parties regarding a potential transaction involving the Company (other than the previously
withdrawn proposal by Company A), and the Company’s other strategic alternatives, including the possibility of continuing
to operate the Company as an independent publicly-traded company and the possibility of engaging in a sale of the Company to another
party which did not appear to be feasible given the lack of interest by any of the potential buyers contacted by Credit Suisse
and the absence of any proposals made by any unsolicited potential buyers (other than the withdrawn non-binding proposal by Company
A).
On November 7, 2015, the Company’s management
provided the Special Committee with updated financial projections which contained adjustments to the previously estimated full
year 2015 results of operations to reflect the Company’s actual results of operations for the first three quarters of the
year and management’s better visibility into full year results with the end of the year approaching. Other than the changes
to the estimated results of operations for 2015 (which included an increase in projected 2015 net income levels of less than 5%
or RMB15 million due primarily to an increase in expected revenues and lower expected expenses), there were no other changes to
the financial projections previously provided to the Special Committee. Please see “— Certain Financial Projections”
beginning on page 45 for a table setting forth the projected financial information provided by the Company’s management
to the Special Committee on November 7, 2015 as well as additional information regarding such financial projections.
On November 8, 2015, members of the Special
Committee and representatives of the Buyer Group had a meeting to discuss the key outstanding issues in the revised draft of the
merger agreement received on October 23, 2015. Ms. Wu was invited to attend the meeting as a representative of the management
of the Company. During the meeting, representatives of BTG Hotels indicated, among other things, that certain PRC regulators had
communicated that BTG Hotels should not agree to a significant amount of reverse termination fee payable upon termination for
failure to obtain required PRC regulatory approvals or failure to obtain the approval of the BTG Hotels shareholders. The members
of the Special Committee discussed with the representatives of the Buyer Group, among other matters, their prior requests for
BTG Hotels to offer shareholders of the Company other than the Rollover Shareholders the opportunity to participate in the Share
Exchange. Representatives of the Buyer Group confirmed their rejection of this proposal in light of the impracticability of pursuing
this proposed alternative.
Between November 8, 2015 and November 10, 2015,
members of the Special Committee had a number of follow-up discussions among themselves to discuss the Special Committee’s
positions on each of the key outstanding issues in the revised draft of the merger agreement received on October 23, 2015, including
among others, (i) price, (ii) “majority of the minority” vote requirement, (iii) amounts of the Company termination
fee and reverse termination fee, (iv) potential guarantee from BTG with respect to the payment of reverse termination fee, (v)
proposed structure of the Share Exchange, (vi) the Company’s right to specific performance, and (vii) the requested
indemnity from BTG Hotels to the Company and its directors and officers for losses resulting from BTG Hotels’ disclosure
of Company-related information.
On November 9 and November 10, 2015, the Special
Committee held telephonic meetings attended by representatives of Simpson Thacher and Credit Suisse, during which the Special
Committee discussed its proposed positions on each of the key outstanding issues. The Special Committee discussed with Credit
Suisse and Simpson Thacher their request for an improved offer price and discussed the best course for maximizing shareholder
value. Following discussions, the Special Committee determined to request (i) an increase in the purchase price to US$35.90 per
ADS, (ii) a reverse termination fee equal to 6% of total equity value of the Company for termination due to the Buyer Group’s
breach of the merger agreement and a reverse termination fee equal to 1.5% of total equity value of the Company for termination
due to failure to obtain requisite regulatory approvals or failure to obtain BTG Hotels’ shareholder approval, and a termination
fee equal to 1.5% of total equity value of the Company for termination due to the Company’s breach of the merger agreement
and other triggering events, (iii) “majority of minority” vote requirement, (iv) a guarantee from BTG with respect
to the payment of reverse termination fee, and (v) the indemnity from BTG Hotels to the Company and its directors and officers
for any losses resulting from BTG Hotels’ disclosure of Company-related information as a condition to the agreement that
the Company would make certain representations and warranties regarding the accuracy of the Company-related information provided
by the Company expressly for inclusion by BTG Hotels in certain disclosure documents required to be prepared by BTG Hotels under
applicable PRC laws and regulations. The Special Committee discussed with representatives of Simpson Thacher and representatives
of Credit Suisse the desire to show flexibility on the amount of the reverse termination fee payable by the Buyer Group if the
merger agreement was terminated for failure to obtain required PRC regulatory approvals or failure to obtain the approval of the
BTG Hotels’ shareholders in light of the communications by certain PRC regulators on the issue and the need to focus on
an increased price. The Special Committee also determined not to require BTG Hotels to offer any shareholders of the Company (other
than the Rollover Shareholders) the opportunity to participate in the Share Exchange in light of the legal and practical issues
presented by such request, the Buyer Group’s prior position on such request, the lock-up period of 12 to 36 months applicable
to BTG Hotels shares to be issued to the Rollover Shareholders in the Share Exchange, and the need to focus on negotiating with
the Buyer Group to increase its offer price. In addition, in light of the perceived practical difficulty of enforcing a specific
performance provision in the PRC against BTG Hotels, the Buyer Group’s intention to fund all of the merger consideration
by debt financing and various other factors, the Special Committee determined that it would not require the Company’s right
to specific performance to require the Buyer Group to close the Merger in order to focus on negotiating for, among other things,
a price increase.
During the evening of November 10, 2015, representatives
of Credit Suisse and Simpson Thacher held a telephonic meeting with representatives of UBS and Skadden to communicate the Special
Committee’s positions on each of the key outstanding issues. During the telephonic meeting, representatives of Credit Suisse
and Simpson Thacher stated, among other things, that the Special Committee would require an increase in the purchase price to
US$35.90 per ADS and noted the proposed purchase price of US$35.80 per ADS in the Proposed Company A Transaction (although Company
A had previously withdrawn its proposal).
From November 11, 2015 through November 17,
2015, members of the Special Committee had various telephone conversations with representatives of the Buyer Group regarding the
Special Committee’s positions on the key outstanding issues, as communicated by Credit Suisse and Simpson Thacher to UBS
and Skadden on November 10, 2015.
On November 12, 2015, the Company and the Proposal
Parties executed a letter agreement related to the provision of financial data of the Company solely to the extent required for
the preparation of a reconciliation of the Company’s financial statements for the years ended December 31, 2013 and 2014
and for the nine months ended September 30, 2015 from U.S. GAAP to PRC GAAP in order for BTG Hotels to meet the disclosure requirements
applicable to it under applicable PRC laws and regulations and prepare disclosure documents in connection with the shareholders
meeting of BTG Hotels required to vote on the Proposed Transaction. The Company subsequently provided to the Buyer Group the required
financial data pursuant to such letter agreement. The letter agreement does not require the Company to provide any financial statements
prepared or audited under PRC GAAP, and the Company has not provided such financial statements to the Buyer Group.
On November 16, 2015, Simpson Thacher provided
a revised draft of the merger agreement to Skadden, reflecting the Special Committee’s positions on the key outstanding
issues. In addition, O’Melveny provided Skadden with an initial draft of the Company’s disclosure schedule to the
merger agreement.
On the same date, Skadden sent Simpson
Thacher a draft “reorganization report” of BTG Hotels prepared by BTG Hotels. This document was one of the disclosure
documents BTG Hotels filed with the Shanghai Stock Exchange and made available to its shareholders who have already voted to approve
the Proposed Transaction at BTG Hotels’ shareholder meeting held on January 15, 2016, and included background information
regarding the Company, BTG Hotels, the Rollover Shareholders and the proposed transactions, including the Proposed Transaction
and the Share Exchange. The Company was provided a draft of the document solely for the purposes of enabling it and its counsel
to review and comment on the Company-related disclosure in the draft, as the Company was required by applicable PRC regulations
to make representations as to the accuracy of such disclosure in the document. The final document filed with the Shanghai Stock
Exchange included a chapter summarizing the valuation report delivered by Huatai Securities and CITIC Securities to BTG Hotels,
which chapter was omitted from the draft provided to the Company and had not been reviewed by the Company or its representatives
prior to its public filing. The valuation report of Huatai Securities and CITIC Securities summarized in the final reorganization
report filed with the Shanghai Stock Exchange is the same as the valuation report summarized under “—Valuation Report
of the Financial Advisors for BTG Hotels” beginning on page 55 of this proxy statement. In addition, this document, whether
in draft or final form, does not contain any valuation or financial analysis regarding the value of the Company or any of the
Company’s assets or the fairness of any consideration offered in the Merger or the Share Exchange that is materially different
from or additional to the information under “—Valuation Report of the Financial Advisors for BTG Hotels.”
On November 17, 2015, a representative of Skadden
met with a representative of Simpson Thacher to discuss the Buyer Group’s preliminary feedback on the key outstanding issues.
Also on November 17, 2015, the Special Committee
held a telephonic meeting attended by representatives of Simpson Thacher and Credit Suisse, during which the Special Committee
discussed the Buyer Group’s preliminary feedback on the key outstanding issues. The Special Committee also discussed the
proposed terms of the Share Exchange as well as the proposed participation of certain executive officers in the proposed Share
Exchange and any potential conflicts of interest resulting from such potential participation.
On November 18, 2015, members of the Special
Committee, members of the Buyer Group and representatives of Simpson Thacher, Credit Suisse, Skadden and UBS met at the offices
of UBS to discuss the key outstanding issues in the merger agreement. Ms. Wu was invited to the meeting as a representative of
the management of the Company. During this meeting, the Special Committee and the Buyer Group agreed on (i) a reverse termination
fee equal to 5.0% of the total equity value of the Company for termination due to the Buyer Group’s breach of the merger
agreement and a reverse termination fee equal to 1.0% of the total equity value of the Company for termination due to failure
to obtain requisite regulatory approvals or failure to obtain BTG Hotels’ shareholder approval, and a Company termination
fee equal to 2.5% of the total equity value of the Company for termination due to the Company’s breach of the merger agreement,
(ii) requirement for the approval by the “majority of minority” of the Company’s shareholders so long as the
Shares held by the Company’s unaffiliated shareholders present and voting at the Company’s shareholders meeting exceed
50% of the total issued and outstanding Shares, (iii) BTG Hotels’ agreement to obtain a performance guarantee or letter
of credit issued by a bank to back up BTG Hotel’s obligation to pay a reverse termination fee, and (iv) indemnity from BTG
Hotels to the Company for any losses of the Company or its directors or officers resulting from BTG Hotels’ disclosure of
Company-related information (other than information of the Company included in the Company’s filings with the SEC). During
the meeting, the Special Committee maintained its position regarding a price increase to US$35.90 per ADS, but following the meeting,
after further discussion by the Special Committee and in light of the agreements made by the Buyer Group, the Special Committee
indicated its willingness to agree to US$35.80 per ADS.
On November 25, 2015, the Buyer Group agreed
to the purchase price of US$35.80 per ADS proposed by the Special Committee. Later that day, Skadden provided a revised draft
of the merger agreement to Simpson Thacher, and representatives of Simpson Thacher and Skadden held a teleconference to negotiate
the terms of the merger agreement.
On November 26, 2015, Skadden sent a draft
share exchange agreement to Simpson Thacher. Representatives of Skadden informed representatives of Simpson Thacher that BTG Hotels,
BTG and the Rollover Shareholders intended the exchange ratio in the Share Exchange to be based on (i) the per Share merger consideration
in the Merger and (ii) RMB15.69, representing 90% of the volume weighted average price of BTG Hotels shares over the 20 trading
days prior to March 17, 2015, the date BTG Hotels suspended the trading of its shares on the Shanghai Stock Exchange, as permitted
under applicable PRC regulations.
On November 27, 2015, the Special Committee
held a telephonic meeting, attended by Ms. Wu, Ms. Li and representatives of Simpson Thacher and Credit Suisse. Ms. Li and Ms.
Wu presented the updated financial projections prepared by the Company’s management which had been previously provided to
the Special Committee on or around November 7, 2015 (the “Company Projections”), reviewed a memorandum prepared by
the Company’s management related to the Company Projections, and responded to questions from the Special Committee and representatives
of Credit Suisse. In addition, during the meeting, Ms. Wu confirmed to the Special Committee that she had decided not to participate
in the proposed Share Exchange, and Ms. Li confirmed her prior decision not to participate in the proposed Share Exchange. Ms.
Wu and Ms. Li then left the meeting, and following further discussion, the Special Committee approved the Company Projections
(which are provided under “Special Factors—Certain Financial Projections”) and directed Credit Suisse to prepare
its valuation analyses with respect to the Company based on the Company Projections. Simpson Thacher then provided an update as
to the remaining key open items in the merger agreement, including among others, the standard under which the Special Committee
and the Board could change their recommendation of the Proposed Transaction, the definition of “superior proposal,”
the request for the Company to obtain a performance guarantee for the payment of the termination fee payable by the Company, and
treatment of unvested company share awards. Following the Special Committee meeting, Simpson Thacher sent a revised draft of the
merger agreement to Skadden.
Over the course of November 28, 2015 and December
4, 2015, Simpson Thacher and Skadden continued to negotiate the merger agreement, Holdco’s disclosure schedule to the merger
agreement, the performance guarantee and related documentation, and O’Melveny and Skadden continued to negotiate the Company’s
disclosure schedule to the merger agreement. Representatives of Simpson Thacher communicated to representatives of Skadden that
the Special Committee would not agree to the Buyer Group’s requests that (i) the Special Committee and the Board could change
their recommendation of the Proposed Transaction only if there is a “superior proposal,” (ii) a “superior
proposal” be limited to competing transactions that would result in any person acquiring more than 50% Shares or (iii) the
Company obtain a performance guarantee for payment of the termination fee.
On December 2, 2015, Skadden sent a draft consortium
agreement and the updated draft reorganization report of BTG Hotels to Simpson Thacher.
On December 4, 2015, the Special Committee
held a telephonic meeting, attended by representatives of Simpson Thacher and Credit Suisse. Simpson Thacher provided an update
as to the resolutions of the remaining key open items in the merger agreement, including the Buyer Group’s latest request
that, given the Company’s refusal to obtain a performance guarantee for payment of the Company termination fee, as previously
requested by the Buyer Group, certain of the significant subsidiaries of the Company be jointly and severally responsible for
the payment of the termination fee and sign the merger agreement solely for these purposes. After further discussions, the Special
Committee instructed Simpson Thacher to communicate to the Buyer Group that it would not accept the Buyer Group’s request
and to work with Skadden to finalize the merger agreement. During the meeting, representatives of Credit Suisse also reviewed
Credit Suisse’s draft financial analyses in connection with the Proposed Transaction. The Special Committee instructed Credit
Suisse to make a presentation to the Special Committee regarding its opinion on the fairness of the consideration, from a financial
point of view, to be paid in the Proposed Transaction at the next Special Committee meeting.
Later that day, Simpson Thacher sent a revised
draft of the merger agreement to Skadden, and Skadden provided to Simpson Thacher updated drafts of the commitment letter, the
performance guarantee, the share exchange agreement, the support agreement and the consortium agreement. Representatives of Simpson
Thacher indicated that the Special Committee would not agree to make subsidiaries of the Company a party to the merger agreement
or guarantors of the Company’s obligation to pay the termination fee but offered to add a covenant in the merger agreement
that would require the Company to cause its subsidiaries to make available to the Company any funds necessary for the Company
to fund payment of the termination fee when payable. Following discussion, the representatives of Skadden indicated that the Buyer
Group would proceed with the suggested approach so long as the applicable covenant in the merger agreement would require Company
to cause its subsidiaries to incur indebtedness and sell assets or securities to the extent required to fund the payment of the
termination fee (if and when payable). The Special Committee accepted such proposed additions and instructed representatives of
Simpson Thacher to finalize the merger agreement with representatives of Skadden.
Also on December 4, 2015, Industrial and Commercial
Bank of China Limited, Beijing Central Business District Branch, executed the performance guarantee in favor of a PRC subsidiary
designated by the Company with respect to BTG Hotels’ payment of reverse termination fee when payable under the merger agreement,
which became effective upon the execution of the merger agreement.
On December 5, 2015, the Special Committee
held a telephonic meeting, attended by representatives of Simpson Thacher and Credit Suisse. Simpson Thacher reviewed with the
Special Committee the directors’ fiduciary duties in connection with their consideration of the Proposed Transaction. Simpson
Thacher (i) summarized for the Special Committee the key terms of the merger agreement, including the merger consideration,
the termination fee and reverse termination fee, conditions to closing and termination events, (ii) discussed other documents
related to the Proposed Transaction and the Share Exchange, including the share exchange agreement, the consortium agreement,
the support agreement, the debt commitment letter, the performance guarantee, and the draft reorganization report of BTG Hotels,
and noted that the merger agreement contained a number of improved terms, including among others, an increased price per Share
and per ADS, the “majority of minority” vote requirement so long as the Shares held by the Company’s unaffiliated
shareholders present and voting at the Company’s shareholders meeting exceed 50% of the total issued and outstanding Shares,
the ability of the Special Committee and the Board to change their recommendation of the Proposed Transaction without a superior
proposal if failure to do so would be inconsistent with their fiduciary duties, and a performance guarantee from Industrial and
Commercial Bank of China Limited, Beijing Central Business District Branch, for the payment of reverse termination fee. Credit
Suisse then made a presentation to the Special Committee regarding its financial analyses with respect to the consideration that
would be paid to the Company’s shareholders in the potential merger. Thereafter, at the request of the Special Committee,
Credit Suisse delivered its oral opinion, subsequently confirmed in writing and attached hereto as Annex C, to the Special Committee
to the effect that, as of the date of such opinion and subject to the limitations, qualifications and assumptions set forth therein,
each of the Per Share Merger Consideration and the Per ADS Merger Consideration to be received by the Non-Rollover Security Holders
was fair, from a financial point of view, to the Non-Rollover Security Holders. After considering the proposed terms of the merger
agreement and the presentation of Credit Suisse, including receipt of Credit Suisse’s oral opinion, and taking into account
the other factors described below under the headings titled “Reasons for the Merger and Recommendation of the Special Committee
and the Board” beginning on page 38, the Special Committee then unanimously determined that the merger agreement, the plan
of merger and the transactions contemplated by the merger agreement and the plan of merger, including the merger, were fair to
and in the best interests of the Company and its shareholders (other than the Rollover Shareholders) and declared it advisable
for the Company to enter into the merger agreement and the plan of merger and recommended that the Board authorize and approve
the merger agreement, the plan of merger and the transactions contemplated by the merger agreement and the plan of merger, including
the merger, and recommend that the shareholders of the Company authorize and approve the merger agreement, the plan of merger
and the transactions contemplated by the merger agreement, including the merger.
Following the meeting of the Special Committee,
on the same date, the Board held a meeting, attended by representatives of Simpson Thacher, Credit Suisse and O’Melveny.
O’Melveny reviewed the directors’ fiduciary duties in connection with their consideration of the Proposed Transaction.
Simpson Thacher provided a summary of the key terms of the merger agreement, and reported that the Special Committee’s recommendation
to the Board. After considering the proposed terms of the merger agreement and the other transaction agreements and the recommendation
of the Special Committee, and taking into account the other factors described below under the heading titled “Reasons for
the Merger and Recommendation of the Special Committee and the Board” beginning on page 38, the Board unanimously determined
that the merger agreement, the plan of merger and the transactions contemplated by the merger agreement and the plan of merger,
including the merger, were fair to and in the best interests of the Company and its shareholders (other than the Rollover Shareholders),
declared it advisable to enter into the merger agreement and the plan of merger and consummate the transactions contemplated by
the merger agreement and the plan of merger, including the merger, approved the execution, delivery and performance of the merger
agreement and the plan of merger and consummate the transactions contemplated by the merger agreement and the plan of merger,
including the merger, and directed that the authorization and approval of the merger agreement, the plan of merger and the transactions
contemplated by the merger agreement, including the merger, be submitted to a vote at an extraordinary general meeting of the
shareholders of the Company with the recommendation of the Board that the shareholders of the Company authorize and approve the
merger agreement, the plan of merger and the transactions contemplated by the merger agreement, including the merger. See “Reasons
for the Merger and Recommendation of the Special Committee and the Board” beginning on page 38 for a full description of
the resolutions of the Board at this meeting.
On December 6, 2015, the Company, Holdco and
Merger Sub, and solely for specified purposes therein, BTG Hotels, executed the merger agreement. Concurrently with the execution
of the merger agreement, BTG Hotels, Holdco and the Rollover Shareholders executed the support agreement. BTG Hotels, Holdco and
the Lead Arranger executed the debt commitment letter and a customary fee letter in connection with the debt financing provided
by the Lead Arranger.
Also on December 6, 2015, BTG Hotels, BTG and
the Rollover Shareholders other than Poly Victory executed the share exchange agreement in connection with the Share Exchange,
and the Proposal Parties executed the consortium agreement.
On December 7, 2015, the Company issued a press
release announcing the execution of the merger agreement, and furnished the press release and the executed merger agreement to
the SEC as exhibits to a Current Report on Form 6-K.
Reasons for the Merger and Recommendation of the Special Committee
and the Board
At a meeting on December 5, 2015, the Special
Committee, after consultation with its financial advisor and legal counsel, unanimously (a) determined that the Merger Agreement,
the Plan of Merger and the Transactions, including the Merger, on the terms and subject to the conditions set forth in the Merger
Agreement, are fair to and in the best interest of the Company and its Unaffiliated Security Holders, (b) declared it advisable
for the Company to enter into the Merger Agreement, the Plan of Merger and the Transactions, including the Merger, and (c) recommended
that the Board authorize and approve the Merger Agreement, the Plan of Merger and the Transactions, including the Merger.
At a meeting on December 5, 2015, the Board,
acting upon the unanimous recommendation of the Special Committee, and after each director duly disclosed his interests in the
Transactions, including the Merger, as required by the memorandum and articles of associations of the Company as amended to date
and Cayman Islands Companies Law, unanimously (a) determined that the Merger Agreement, the Plan of Merger and the Transactions,
including the Merger, on the terms and subject to the conditions set forth in the Merger Agreement, are fair to, and in the best
interests of, the Company and its Unaffiliated Security Holders and declared it advisable for the Company to enter into the Transactions,
including the Merger, (b) authorized and approved the execution, delivery and performance of the Merger Agreement, the Plan
of Merger and the consummation of the Transactions, including the Merger, (c) directed that the Merger Agreement, the Plan
of Merger and the Transactions, including the Merger, be submitted to the shareholders of the Company for authorization and approval,
and (d) subject to the terms of the Merger Agreement, resolved to recommend the approval of the Merger Agreement, the Plan of
Merger and the Transactions, including the Merger, to the shareholders of the Company.
In the course of reaching their respective
determinations, the Special Committee and the Board considered the following substantive factors and potential benefits of the
Merger, including the following, which are not listed in any relative order of importance:
| · | the current
and historical market prices of ADSs, and the fact that the Per ADS Merger Consideration
of US$35.80 offered to the Company’s Unaffiliated Security Holders represents a
premium of 18.7% over the closing price of US$30.17 per ADS on June 10, 2015, and a premium
of 29.4% and 36.6%, respectively, to the volume-weighted average price of the Company’s
ADSs during the 30 and 60 trading days prior to June 10, 2015, one day prior to the date
that the Company announced that it had received a going-private proposal from the Proposal
Parties; |
| · | the lowest
closing price of the Company’s ADSs during the 52-week period prior to December
7, 2015, the date that the Company announced the execution of the Merger Agreement, was
US$22.07; |
| · | the fact
that the consideration payable in the Merger to the Unaffiliated Security Holders is
in cash, which would allow the Company’s Unaffiliated Security Holders to immediately
realize liquidity for their investment and provide them with a specified amount of cash
consideration for their ordinary shares or ADSs; |
| · | the possible
alternatives to the Merger, including the possibility of continuing to operate the Company
as an independent publicly-traded company and the possibility of a sale of the Company
to another party, and the perceived potential benefits and risks of those alternatives
and the likelihood of accomplishing the goals of such alternatives, and the assessment
by the Special Committee that none of these alternatives was reasonably likely to present
superior opportunities for the Company or to create greater value for its shareholders
than the Merger, taking into account (i) the potential impact on the trading price of
the Company’s ADSs if the Company’s pursuit of the Merger was terminated,
(ii) the fact that the Buyer Group indicated it may consummate the Share Exchange even
if the Merger was abandoned, (iii) macro-economic factors in the PRC, (iv) the financial
projections for the Company prepared by the Company’s management, and (v) the absence
of any interest in acquiring the Company by potential buyers contacted by Credit Suisse
and the absence of any proposals made by any unsolicited potential buyers (other than
the withdrawn non-binding proposal by Company A); |
| · | the belief
of the Special Committee that the terms of the Merger Agreement, including the parties’
representations, warranties and covenants and the conditions to their respective obligations,
are reasonable; |
| · | the likelihood
that the Merger would be completed based on, among other things (not in any relative
order of importance), the fact that BTG Hotels is a publicly listed company, the absence
of a financing condition in the Merger Agreement and the level of efforts that Holdco
and Merger Sub must use under the Merger Agreement to obtain the proceeds of the financing
and to obtain all Requisite Regulatory Approvals; |
| · | the fact
that Credit Suisse had conducted a pre-signing market check on behalf of the Special
Committee and, since the announcement of the Proposed Transaction on June 11, 2015, no
party (other than the Buyer Group and Company A) had contacted the Company or the Special
Committee, or responded to inquiries by Credit Suisse on behalf of the Special Committee,
expressing an interest in exploring an alternative transaction with the Company; |
| · | the fact
that Company A refused to enter into a confidentiality and standstill agreement following
its preliminary non-binding proposal letter to acquire all of the Company’s issued
and outstanding Shares for US$35.80 per ADS, required an acquisition of 100% of the outstanding
shares unless the Buyer Group partnered with Company A (which the Buyer Group confirmed
that it would not be willing to consider), did not take any concrete steps to pursue
such potential transaction, and subsequently withdrew its non-binding, preliminary proposal
in less than one month after making such proposal; |
| · | the negotiations
with respect to the Per Share Merger Consideration and Per ADS Merger Consideration and
the Special Committee’s determination that, following extensive negotiations with
the Buyer Group, US$35.80 per ADS was the highest price that the Buyer Group would agree
to pay, with the Special Committee basing its belief on a number of factors, including
the duration and tenor of negotiations and the experience of the Special Committee and
its advisors; |
| · | the fact
that the Merger Agreement provides that, in the event of a failure of the Merger to be
completed under certain circumstances, Parent will pay, or cause to be paid, to a PRC
subsidiary of the Company designated by the Company a termination fee of an amount in
RMB equal to US$88,873,000 and that Industrial
and Commercial Bank of China Limited, Beijing Central Business District Branch,
has issued a performance guarantee for the payment of such termination fee in the event
and to the extent that Parent fails to pay the full amount of the termination fee payable
by Parent under the Merger Agreement when due (see “The Merger Agreement—Termination
Fee” and “Summary Term Sheet—Termination Fee” beginning on page
14); |
| · | the financial
analysis reviewed and discussed with the Special Committee by representatives of Credit
Suisse, as well as the oral opinion of Credit Suisse delivered to the Special Committee
on December 5, 2015, subsequently confirmed in writing and attached hereto as Annex C,
that, as of the date of such opinion and subject to the limitations, qualifications and
assumptions set forth therein, each of the Per Share Merger Consideration and the Per
ADS Merger Consideration to be received by the Non-Rollover Security Holders was fair,
from a financial point of view, to the Non-Rollover Security Holders (see “Special
Factors—Opinions of the Special Committee’s Financial Advisor” beginning
on page 50 for additional information); and |
| · | the forecast
of the Company’s future financial performance prepared by the Company’s management
based on their knowledge of the Company’s business, financial conditions, results
of operations, prospects and competitive position. |
In addition, the Special Committee and the
Board believed that sufficient procedural safeguards were and are present to ensure that the Merger is procedurally fair to the
Unaffiliated Security Holders and to permit the Special Committee and the Board to represent effectively the interests of such
shareholders, which procedural safeguards include the following, which are not listed in any relative order of importance:
| · | the consideration
and negotiation of the Merger Agreement was conducted entirely under the control and
supervision of the Special Committee, which consists of three independent directors,
each of whom is an outside, non-employee director, and that no limitations were placed
on the Special Committee’s authority; |
| · | in considering
the transaction with the Buyer Group, the Special Committee acted solely to represent
the interests of the Unaffiliated Security Holders, and the Special Committee had independent
control of the extensive negotiations with the Buyer Group and their advisors on behalf
of such shareholders; |
| · | all of
the members of the Special Committee during the entire process were and are independent
directors and free from any affiliation with the Buyer Group; in addition, none of the
members of the Special Committee is or ever was an employee of the Company or any of
its subsidiaries or affiliates, and none of such members has any financial interest in
the Merger that is different from that of the Unaffiliated Security Holders other than
(i) the members’ receipt of Board compensation in the ordinary course and Special
Committee compensation in connection with its evaluation of the Merger (none of which
is contingent upon the completion of the Merger or the Special Committee’s or the
Board’s recommendation of the Merger), (ii) their indemnification and liability
insurance rights under the Merger Agreement and (iii) the acceleration of the vesting
of restricted cash awards to be issued to the members for the unvested options and restricted
share units held by them; |
| · | the Special
Committee was assisted in negotiations with the Buyer Group and in its evaluation of
the Merger by Credit Suisse as its financial advisor and Simpson Thacher, Maples, and
Fangda as its legal advisors; |
| · | the Special
Committee was empowered to consider, attend to and take any and all actions in connection
with the written proposal from the Proposal Parties with respect to the Proposed Transaction
from the date the Special Committee was established, and no evaluation, negotiation or
response regarding the Proposed Transaction in connection therewith from that date forward
was considered by the Board for approval until the Special Committee had recommended
such action to the Board; |
| · | the terms
and conditions of the Merger Agreement were the product of extensive negotiations between
the Special Committee and its advisors, on the one hand, and the Buyer Group and its
advisors, on the other hand, over the course of approximately six months; |
| · | the review
by the Special Committee of the terms of the Share Exchange, the fact that the exchange
ratio in the Share Exchange is based on the Per Share Merger Consideration and the fact
that the BTG Hotels shares to be issued in the Share Exchange will be subject to a lock-up
of 12 or 36 months; |
| · | the analysis
and negotiations undertaken by the Special Committee and its advisors to ensure that
the Merger is not conditioned on the consummation of the Share Exchange or the receipt
of any regulatory approvals required to consummate the Share Exchange and that BTG’s
issuance of the Exchangeable Bonds is a separate and independent transaction which is
not inter-conditional with the Merger; |
| · | the Special
Committee was empowered to exercise the full power and authority of the Board to evaluate
and negotiate the Proposed Transaction and undertake its related process; |
| · | the Special
Committee held telephonic meetings on multiple occasions to consider and review the terms
of the Merger Agreement and the Proposed Transaction; |
| · | the recognition
by the Special Committee and the Board that the Special Committee had no obligation to
recommend the Merger or any other transaction; |
| · | the recognition
by the Special Committee and the Board that, subject to compliance with the terms and
conditions of the Merger Agreement, the Company has the ability to consider any acquisition
proposal with respect to a competing transaction reasonably likely to lead to a superior
proposal (as defined under the caption “The Merger Agreement—Acquisition
Proposals” beginning on page 89) until the Company’s shareholders vote upon
and authorize and approve the Merger Agreement, the Plan of Merger and the Transactions,
including the Merger; |
| · | the Board’s
ability, under certain circumstances, to change, withhold, withdraw, qualify or modify
the recommendation of the Board that the Company’s shareholders vote to authorize
and approve the Merger Agreement, the Plan of Merger and the Transactions, including
the Merger; |
| · | the fact
that the Merger Agreement is required to be approved by (i) a special resolution (as
defined in the Cayman Islands Companies Law), which requires an affirmative vote of shareholders
representing at least two-thirds of the Shares present and voting in person or by proxy
as a single class at the extraordinary general meeting of the Company’s shareholders,
and (ii) the Majority of the Minority Vote Requirement, which requires, so long as the
Shares (excluding the Shares held by the Rollover Shareholders) present and voting in
person or by proxy at the extraordinary general meeting of the Company’s shareholders
exceed 50% of all of the issued and outstanding Shares of the Company as of the close
of business on the Share Record Date, the affirmative vote of holders of Shares representing
more than 50% of the Shares (excluding the Shares held by the Rollover Shareholders)
present and voting in person or by proxy as a single class at such meeting; and |
| · | the availability
of dissenters’ rights to shareholders who comply with all of the required procedures
under the Cayman Islands Companies Law for exercising dissenters’ rights, which
allow such shareholders to receive payment of the fair value of their Shares as determined
by the Grand Court of the Cayman Islands. |
The Special Committee and the Board also considered
a variety of potentially negative factors concerning the Merger Agreement and the Merger, including the following, which are not
listed in any relative order of importance:
| · | the fact
that the Rollover Shareholders and certain directors and executive officers of the Company
have interests in the Merger that are different from, and/or in addition to, those of
the Unaffiliated Security Holders, including the terms and conditions of the Share Exchange; |
| · | the
uncertainty regarding the value to be received by the Rollover Shareholders in the Share
Exchange, particularly in light of the timing and uncertainty of completion of the Share
Exchange and the impact of the applicable 12 or 36 month lock-up period on the expected
value of the BTG Hotels shares, and the possibility that, depending on the future trading
price of the BTG Hotels shares, the per Share value represented by the BTG Hotels shares
to be received in the Share Exchange by BTG and the Rollover Shareholders (other than
Poly Victory) in exchange for their beneficial ownership of the Rollover Shares may be
higher than the Per Share Merger Consideration;
|
| · | the Unaffiliated
Security Holders will have no ongoing equity participation in the Company following the
Merger, and they will cease to participate in the Company’s future earnings or
growth, if any, or to benefit from increases, if any, in the value of ordinary shares
and ADSs, and will not participate in any potential future sale of the Company to a third
party or any potential recapitalization of the Company, which could include a dividend
to shareholders; |
| · | the Rollover
Shareholders’ obligation to vote against any competing transaction under the Support
Agreement and to work exclusively with one another under the Consortium Agreement, and
the fact that there is no clear path for any competing transaction to be successful; |
| · | the restrictions
on the conduct of the Company’s business prior to the completion of the Merger,
which may delay or prevent the Company from undertaking business opportunities that may
arise or any other action it would otherwise take with respect to the operations of the
Company pending the completion of the Merger; |
| · | since
the Company became publicly listed on NASDAQ in October 2006, the highest historical
closing price of ADSs (US$53.66 per ADS on October 14, 2010) substantially exceeds the
Per ADS Merger Consideration of US$35.80 per ADS; |
| · | the risks
and costs to the Company if the Merger is not completed, including the diversion of management
and employee attention, potential employee attrition and the potential disruptive effect
on the Company’s business and customer relationships; |
| · | the Company
may be required, under certain circumstances, to pay Parent a termination fee of US$44,437,000
in connection with a termination of the Merger Agreement; |
| · | the Company’s
remedy in the event of a breach of the Merger Agreement by Parent or Merger Sub is limited,
under certain circumstances, to receipt from Parent of a termination fee in RMB equal
to US$88,873,000, and, under certain circumstances the Company may not be entitled to
a termination fee payable by Parent at all; |
| · | the Company’s
inability to specifically enforce the obligations of Holdco and Merger Sub to close the
Merger; |
| · | the fact
that a substantial number of approvals need to be obtained from and/or filings need to
be made with PRC governmental authorities in connection with the Proposed Transaction,
and the uncertainty of the time required and ability of Parent and Holdco to obtain such
approvals or complete such filings; |
| · | the fact
that the Merger is subject to a variety of closing conditions which may not be satisfied,
including the requirement for Parent to obtain the Requisite Parent Vote (as defined
below) and the requirement for the parties to obtain all of the Requisite Regulatory
Approvals, and the fact that the Company’s remedy in the event the Merger Agreement
is terminated under such circumstances is limited to the receipt from Parent of a termination
fee in RMB equal to $17,775,000; and |
| · | the possibility
that the Merger might not be completed and the negative impact of such a public announcement
on the Company’s sales and operating results, and the Company’s ability to
attract and retain key management, marketing and technical personnel. |
The foregoing discussion of information and
factors considered by the Special Committee and the Board is not intended to be exhaustive, but includes a number of the factors
considered by the Special Committee and the Board. In view of the wide variety of factors considered by the Special Committee
and the Board, neither the Special Committee nor the Board found it practicable to quantify or otherwise assign relative weights
to the foregoing factors in reaching its conclusions. In addition, individual members of the Special Committee and the Board may
have given different weights to different factors and may have viewed some factors more positively or negatively than others.
The Special Committee unanimously recommended that the Board authorize and approve, and the Board unanimously authorized and approved,
the Merger Agreement, the Plan of Merger and the Transactions, including the Merger, based upon the totality of the information
presented to and considered by it.
In reaching its conclusion regarding the fairness
of the Merger to the Company’s Unaffiliated Security Holders and its decision to recommend the authorization and approval
of the Merger Agreement, the Plan of Merger and the transactions, including the Merger, the Special Committee considered financial
analyses presented by Credit Suisse. These analyses included, among others, discounted cash flow analysis, selected companies
analysis, selected transactions analysis and other analyses. All of the material analyses as presented to the Special Committee
on December 5, 2015 are summarized below under the caption “Special Factors—Opinions of the Special Committee’s
Financial Advisor” beginning on page 50. The Special Committee expressly adopted these analyses and opinions, among other
factors considered, in reaching its determination as to the fairness of the Transactions, including the Merger.
Neither the Special Committee nor the Board
considered the liquidation value of the Company’s assets because each considers the Company to be a viable going-concern
business where value is derived from cash flows generated from its continuing operations. In addition, the Special Committee
and the Board believe that the value of the Company’s assets that might be realized in a liquidation would be significantly
less than its going-concern value. Each of the Special Committee and the Board believes the analyses and additional factors it
reviewed provided an indication of the Company’s going-concern value. Each of the Special Committee and the Board also considered
the historical market prices of our ADSs as described under the caption “Market Price of the Company’s ADSs, Dividends
and Other Matters—Market Price of the ADSs” beginning on page 75. Each of the Special Committee and the Board considered
the purchase prices paid in previous purchases as described under “Transactions in Shares and ADSs” beginning on page
104. Neither the Special Committee nor the Board, however, considered the Company’s net book value, which is defined as
total assets minus total liabilities, attributable to the Company’s shareholders, as a factor. The Special Committee
and the Board believe that net book value is not a material indicator of the value of the Company as a going concern as it does
not take into account the future prospects of the Company, market conditions, trends in the industry or the business risks inherent
in competing with larger companies in that industry. The Company’s net book value per Share as of December 31, 2014
was US$8.51 based on 95,703,960 issued and outstanding Shares as of that date.
In reaching its determination that the Merger
Agreement, the Plan of Merger and the Transactions, including the Merger, are fair to, and in the best interests of, the Company
and its Unaffiliated Security Holders and its decision to authorize and approve the Merger Agreement, the Plan of Merger and the
Transactions, including the Merger, and recommend the authorization and approval of the Merger Agreement, the Plan of Merger and
the Transactions, including the Merger, by the Company’s shareholders, the Board, on behalf of the Company, considered the
analysis and recommendation of the Special Committee and the factors examined by the Special Committee as described above under
this section and under the caption “Special Factors—Background of the Merger,” and adopted such recommendations
and analysis. During its consideration of the Merger Agreement and the transactions, including the Merger, the Board was also
aware that some of the Company’s directors and shareholders, including the chairman of the Board, and other employees of
the Company, have interests with respect to the Merger that are, or may be, different from, and/or in addition to those of the
Company’s Unaffiliated Security Holders generally, as described under the caption “Special Factors—Interests
of Certain Persons in the Merger” beginning on page 65.
Except as set forth under “Special Factors—Background
of the Merger” beginning on page 26, “Special Factors—Reasons for the Merger and Recommendation of the Special
Committee and the Board” beginning on page 38 and “Special Factors—Opinions of the Special Committee’s
Financial Advisor” beginning on page 50, no director who is not an employee of the Company has retained an unaffiliated
representative to act solely on behalf of Unaffiliated Security Holders for purposes of negotiating the terms of the Transaction
and/or preparing a report concerning the fairness of the Transaction.
For the foregoing reasons, the Special Committee
and the Board believe that the Merger Agreement, the Plan of Merger and the transactions, including the Merger, are substantially
and procedurally fair to, and in the best interests of, the Company and its Unaffiliated Security Holders.
Position of the Buyer Group as to the Fairness of the Merger
Under SEC rules governing going-private transactions,
each member of the Buyer Group is required to express its belief as to the fairness of the Merger to the Unaffiliated Security
Holders. The Buyer Group is making the statements included in this section solely for the purpose of complying with the requirements
of Rule 13e-3 and related rules under the Exchange Act. The views of the Buyer Group as to the fairness of the Merger are not
intended to be and should not be construed as a recommendation to any shareholder of the Company as to how that shareholder should
vote on the proposal to approve the Merger and to approve and adopt the Merger Agreement, the Plan of Merger and the Transactions,
including the Merger. The Buyer Group has interests in the Merger that are different from, and/or in addition to, those of the
other shareholders of the Company by virtue of their continuing interests (or potential continuing interests) in the surviving
company after the completion of the Merger. These interests are described under “Special Factors—Interests of Certain
Persons in the Merger—Interests of the Buyer Group” beginning on page 65.
The Buyer Group believes that the interests
of the Company’s Unaffiliated Security Holders were represented by the Special Committee, which negotiated the terms and
conditions of the Merger Agreement with the assistance of its independent legal and financial advisors. The Buyer Group attempted
to negotiate a transaction that would be most favorable to it, and not to the Unaffiliated Security Holders and, accordingly,
did not negotiate the Merger Agreement with a goal of obtaining terms that were substantively or procedurally fair to the Unaffiliated
Security Holders. None of the Buyer Group members or their respective affiliates participated in the deliberations of the Special
Committee regarding, nor received any advice from the Special Committee’s independent legal or financial advisors as to,
the fairness of the Merger to the Company’s Unaffiliated Security Holders.
Furthermore, no financial advisor provided
any of the Buyer Group members or their affiliates with any analysis or opinion with respect to the fairness of the merger consideration
to the Company’s Unaffiliated Security Holders. BTG Hotels has received a valuation report, dated December 23, 2015, as
required under PRC laws and regulations applicable to BTG Hotels as a company listed on the Shanghai Stock Exchange and as discussed
under “Special Factors—Valuation Report of the Financial Advisors for BTG Hotels” beginning on page 55, from
Huatai Securities and CITIC Securities, to the effect that, based upon and subject to the assumptions, limitations, qualifications
and conditions described in such report, the merger consideration is fair and reasonable to BTG Hotels from a financial point
of view. The valuation report of Huatai Securities and CITIC Securities did not address the fairness of the Merger to any shareholder
of the Company, including the Company’s Unaffiliated Security Holders.
Based on their knowledge and analysis of available
information regarding the Company, discussions with the Company’s senior management regarding the Company and its business
and the factors considered by, and findings of, the Special Committee and the Board discussed under “Special Factors—Reasons
for the Merger and Recommendation of the Special Committee and the Board” beginning on page 38, and based on the following
factors, which are not listed in any relative order of importance, the Buyer Group believes that the Merger is both substantively
and procedurally fair to the Unaffiliated Security Holders of the Company:
| · | the US$35.80
Per ADS Merger Consideration or the US$17.90 Per Share Merger Consideration represents
a premium of 18.7% over the closing price of the Company’s ADSs on June 10, 2015,
the last trading day prior to the Company’s announcement on June 11, 2015 that
the Board had received the Proposal Letter, and a premium of 29.4% and 36.6%, respectively,
over the volume-weighted average price of the Company’s ADSs over the 30 and 60
trading days prior to June 10, 2015; |
| · | the lowest
closing price of the Company’s ADSs during the 52-week period prior to December
7, 2015, the date that the Company announced the execution of the Merger Agreement, was
US$22.07; |
| · | the US$35.80
Per ADS Merger Consideration or the US$17.90 Per Share Merger Consideration represents
a premium of 159.4% over the offering price per ADS of US$13.80 pursuant to the Company’s
initial public offering of the Shares conducted in October 2006; |
| · | notwithstanding
that the fairness opinion of Credit Suisse was delivered to the Special Committee only
and none of the Buyer Group members or any of their affiliates was entitled to rely or
relied on such opinion, the fact that the Special Committee received an opinion from
Credit Suisse to the effect that, as of the date of the opinion and based upon and subject
to the procedures followed, assumptions made, matters considered and qualifications and
limitations on the review undertaken by Credit Suisse set forth in Credit Suisse’s
written opinion, the merger consideration was fair, from a financial point of view, to
the Non-Rollover Security Holders; |
| · | the consideration
to be paid to the Company’s Unaffiliated Security Holders in the Merger is all
cash, allowing the Company’s Unaffiliated Security Holders to immediately realize
a certain and fair value for all of their Shares and/or ADSs; |
| · | the Special
Committee, consisting entirely of independent directors who are not executive officers
or employees of the Company and who are not affiliated with any member of the Buyer Group,
was established and given authority to, among other things, review, evaluate and negotiate
the terms of the Merger and to recommend to the Board what action should be taken by
the Company, including not to engage in the Merger; |
| · | members
of the Special Committee do not have any interests in the Merger different from, or in
addition to, those of the Unaffiliated Security Holders, other than (i) the members’
receipt of Board compensation in the ordinary course and Special Committee compensation
in connection with its evaluation of the Merger (none of which is contingent upon the
completion of the Merger or the Special Committee’s or the Board’s recommendation
of the Merger), (ii) their indemnification and liability insurance rights under the Merger
Agreement and (iii) the acceleration of the vesting of restricted cash awards to be issued
to the members for the unvested options and restricted share units held by them; |
| · | the Special
Committee retained and was advised by its legal and financial advisors who are experienced
in advising committees such as the Special Committee in similar transactions; |
| · | the Special
Committee and the Board had no obligation to recommend the approval and authorization
of the Merger Agreement, the Plan of Merger and the Transactions, including the Merger,
or any other transaction; |
| · | none
of the Buyer Group members participated in or sought to influence the deliberative process
of, or the conclusions reached by, the Special Committee or the negotiating positions
of the Special Committee; |
| · | the Merger
was unanimously approved by the Special Committee; |
| · | the Board
was fully informed about the extent to which the interests of certain shareholders of
the Company who are also members of the Buyer Group in the Merger differed from those
of the Unaffiliated Security Holders; |
| · | the Special
Committee and, acting upon the unanimous recommendation of the Special Committee, the
Board determined that the Merger Agreement and the Transactions, including the Merger,
are in the best interests of the Unaffiliated Security Holders; |
| · | the merger
consideration and other terms and conditions of the Merger Agreement were the result
of extensive negotiations between the Buyer Group and the Special Committee and their
respective legal and financial advisors over the course of approximately six months; |
| · | the fact
that Company A, who contacted the Special Committee’s financial advisor during
the Special Committee’s pre-signing market check, did not offer a purchase price
higher than the Per ADS Merger Consideration and subsequently withdrew its proposal with
respect to the Proposed Company A Transaction; |
| · | under
the terms of the Merger Agreement, the approval of the Merger Agreement, the Plan of
Merger and the Transactions by the Company’s shareholders requires both (i) a special
resolution (as defined in the Cayman Islands Companies Law), which requires the affirmative
vote of holders of Shares representing at least two-thirds of the Shares present and
voting at the extraordinary general meeting, and (ii) the Majority of the Minority Vote
Requirement which requires, so long as the Shares (excluding the Shares held by the Rollover
Shareholders) present and voting in person or by proxy at the extraordinary general meeting
of the Company’s shareholders exceed 50% of all of the issued and outstanding Shares
of the Company as of the close of business on the Share Record Date, the affirmative
vote of holders of Shares representing more than 50% of the Shares (excluding the Shares
held by the Rollover Shareholders) present and voting in person or by proxy as a single
class at such meeting; |
| · | under
the terms of the Merger Agreement, in certain circumstances prior to obtaining the requisite
shareholder approval of the Merger, the Company is permitted to provide information to
and participate in discussions or negotiations with persons making acquisition proposals,
and the Board is permitted to withdraw or modify its recommendation of the Merger Agreement; |
| · | the ability
of the Company to terminate the Merger Agreement (in accordance with the terms of the
Merger Agreement) in order to enter into an acquisition agreement relating to a superior
proposal; |
| · | the Board’s
ability, under certain circumstances, to change, withhold, withdraw, qualify or modify
the recommendation of the Board that the Company’s shareholders vote to authorize
and approve the Merger Agreement, the Plan of Merger and the Transactions, including
the Merger; |
| · | under
the law of the Cayman Islands, shareholders have the right to dissent from the Merger
and to receive payment of the fair value of their Shares, which if not agreed will be
determined by the Grand Court of the Cayman Islands. |
The Buyer Group did not consider the liquidation
value of the Company because it considers the Company to be a viable going concern and view the trading history of the Shares
as an indication of the Company’s going concern value and, accordingly, did not believe liquidation value to be relevant
to a determination as to the fairness of the Merger. The Buyer Group did not consider net book value, which is an accounting concept,
as a factor because it believed that net book value is not a material indicator of the value of the Company as a going concern
but rather is indicative of historical costs and therefore not a relevant measure in the determination as to the fairness of the
Merger. The Buyer Group did not establish, and did not consider, a going concern value for the Shares as a public company to determine
the fairness of the merger consideration to the Company’s Unaffiliated Security Holders. However, to the extent the pre-merger
going concern value was reflected in the pre-announcement price of the Company’s Shares, the merger consideration of US$35.80
per ADS or US$17.90 per Share represented a premium to the going concern value of the Company.
Other than to the extent informed by a representative
of Company A and the Special Committee with respect to the Proposed Company A Transaction, the Buyer Group is not aware of, and
thus did not consider, any offers or proposals made by any unaffiliated person, other than the Buyer Group, during the past two
years for (a) the merger or consolidation of the Company with or into another company, or vice versa, (b) an acquisition of the
Company, (c) a tender offer or other acquisition of any class of the Company’s securities, (d) the sale or other transfer
of a material amount of the assets of the Company or (e) a purchase of the Company’s securities that would enable the
purchaser to exercise control over the Company.
The foregoing is a summary of the information
and factors considered and given weight by the Buyer Group in connection with its evaluation of the fairness of the Merger to
the Company’s Unaffiliated Security Holders, which is not intended to be exhaustive, but is believed by the Buyer Group
to include all material factors considered by it. The Buyer Group did not find it practicable to assign, and did not assign, relative
weights to the individual factors considered in reaching its conclusion as to the fairness of the Merger to the Company’s
Unaffiliated Security Holders. Rather, its fairness determination was made after consideration of all of the foregoing factors
as a whole.
The Buyer Group believes these factors provide
a reasonable basis for its belief that the Merger is both substantively and procedurally fair to the Company’s Unaffiliated
Security Holders. This belief, however, is not intended to be and should not be construed as a recommendation by the Buyer Group
to any shareholder of the Company as to how such shareholder should vote with respect to the approval and adoption of the Merger
Agreement.
Certain Financial Projections
The Company’s management does not, as
a matter of course, make available to the public future financial projections. However, management provided the Company Projections
for the fiscal year ended December 31, 2015 through the fiscal year ending December 31, 2020 to the Special Committee
and Credit Suisse, as the financial advisor to the Special Committee, who was authorized by the Special Committee to use and rely
upon the Company Projections, including for purposes of its financial analyses of the Per Share Merger Consideration and the Per
ADS Merger Consideration to the Non-Rollover Security Holders in connection with its financial analysis of the Merger. See “—Background
of the Merger” beginning on page 26. The Company Projections, which had been prepared based on management’s projection
of the Company’s future financial performance and management’s collective best estimates as of the date provided,
were prepared by the Company’s management for internal use and were not prepared with a view toward public disclosure or
compliance with published guidelines of the SEC regarding forward-looking information or the guidelines established by the American
Institute of Certified Public Accountants for preparation and presentation of financial forecasts or U.S. GAAP.
The projections included in the Company Projections
are not a guarantee of performance. They involve significant risks, uncertainties and assumptions. In compiling the projections,
management took into account historical performance, combined with estimates regarding net revenue, operating expenses, profit
before tax, EBITDA, net income attributable to ordinary shareholders and capital expenditures. Although the Company Projections
are presented with numerical specificity, they were based on numerous assumptions and estimates as to future events made by management
that management believed were reasonable at the time the projections were prepared. However, this information is not fact and
should not be relied upon as being necessarily indicative of actual future results. In addition, factors such as industry performance,
the market for our existing and new hotels and related services, the competitive environment, expectations regarding future acquisitions
or any other transactions and general business, economic, regulatory, market and financial conditions, all of which are difficult
to predict and beyond the control of management, may cause actual future results to differ materially from the results forecasted
in these financial projections. The main assumptions underlying the Company Projections are:
| · | the growth
of the hotel hospitality industry and the overall supply of, and demand for, hotel rooms
and services relating to the industry, including franchising services and hotel management
services in the PRC, would continue in line with management’s expectations; |
| · | operating
costs would increase in line with the Company’s revenue increase; |
| · | the Company
would be able to successfully develop and implement its new hotel brands, in particular
its Yitel and Homeinn Plus brand, in accordance with management’s strategy and
business plans; |
| · | China’s
overall economy would remain stable, with no material change in competition adversely
affecting the Company; |
| · | declines
in gross margins due to continued wage and rental inflation pressures will be offset
by the development of new higher-end hotel brands where margins are expected to be higher
due to the nature of such businesses; |
| · | the Company’s
selling, general and administrative expenses as a percentage of revenue would continue
to decrease due to economies of scale as the Company continues to grow; |
| · | interest
expenses on debt would decrease in line with management’s expectations in connection
with reductions in total debt; |
| · | capital
expenditures would increase in line with management’s expectations due to construction
of new hotels, acquisitions of hotels and renovation of existing hotels; and |
| · | a constant
6.4 RMB per US dollar exchange rate over the forecast period. |
The Company Projections do not take into account
any circumstances or events occurring after the date that they were prepared. For instance, the projections do not give effect
to completion of the Merger or any changes to our operations or strategy that may be implemented after the time the projections
were prepared. As a result, there can be no assurance that the projections will be realized, and actual results may be significantly
different from those contained in the Company Projections.
Neither our independent registered public accounting
firm, PricewaterhouseCoopers ZhongTian LLP, nor any other independent accountants have examined, compiled or performed any procedures
with respect to the Company Projections or any amounts derived therefrom or built thereupon and, accordingly, they have not expressed
any opinion or given any form of assurance on the Company Projections or their achievability. The financial projections included
in this proxy statement are included solely to give shareholders access to certain information that was made available to the
Special Committee and to the Special Committee’s financial advisor and are not included for the purpose of influencing any
shareholder to make any investment decision with respect to the Merger, including whether or not to vote in favor of approval
of the Merger Agreement or whether or not to exercise dissenters’ rights pursuant to Section 238 of the Cayman Islands Companies
Law in respect of his, her or its Shares.
The following table sets forth the Company
Projections provided by the Company’s management to the Special Committee on November 7, 2015, approved by the Special Committee
on November 27, 2015 and provided by the Special Committee to its financial advisor for use in the financial advisor’s valuation
analyses provided to the Special Committee:
| |
Company
Projections
as of November 7, 2015 | |
| |
Fiscal
Year Ending
December 31, | |
RMB in millions(1) | |
2015E | (2) | |
2016E | | |
2017E | | |
2018E | | |
2019E | | |
2020E | |
Revenue | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Leased-and-operated hotels revenue | |
| 5,612 | | |
| 5,932 | | |
| 6,448 | | |
| 6,898 | | |
| 7,131 | | |
| 7,298 | |
Franchised-and-managed hotels revenue | |
| 1,027 | | |
| 1,156 | | |
| 1,312 | | |
| 1,488 | | |
| 1,662 | | |
| 1,835 | |
Total Revenue | |
| 6,639 | | |
| 7,089 | | |
| 7,760 | | |
| 8,386 | | |
| 8,793 | | |
| 9,133 | |
Net
Revenue (less business tax and related surcharges) | |
| 6,248 | | |
| 6,671 | | |
| 7,305 | | |
| 7,897 | | |
| 8,282 | | |
| 8,604 | |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Leased-and-operated Hotels Operating Costs | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Rents and utilities | |
| (2,243 | ) | |
| (2,485 | ) | |
| (2,721 | ) | |
| (2,886 | ) | |
| (3,015 | ) | |
| (3,132 | ) |
Personnel costs(3) | |
| (1,111 | ) | |
| (1,182 | ) | |
| (1,265 | ) | |
| (1,322 | ) | |
| (1,357 | ) | |
| (1,389 | ) |
Depreciation and amortization | |
| (784 | ) | |
| (829 | ) | |
| (866 | ) | |
| (885 | ) | |
| (885 | ) | |
| (903 | ) |
Consumables, food and beverage | |
| (394 | ) | |
| (428 | ) | |
| (469 | ) | |
| (502 | ) | |
| (522 | ) | |
| (539 | ) |
Others | |
| (647 | ) | |
| (678 | ) | |
| (727 | ) | |
| (765 | ) | |
| (787 | ) | |
| (806 | ) |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Non-U.S.
GAAP Adjusted Leased-and-operated Hotels Operating Costs | |
| (5,179 | ) | |
| (5,602 | ) | |
| (6,048 | ) | |
| (6,360 | ) | |
| (6,567 | ) | |
| (6,769 | ) |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Personnel cost of franchised-and-managed hotels(3) | |
| (236 | ) | |
| (276 | ) | |
| (324 | ) | |
| (377 | ) | |
| (432 | ) | |
| (489 | ) |
Sales and marketing expenses(3) | |
| (98 | ) | |
| (113 | ) | |
| (124 | ) | |
| (134 | ) | |
| (141 | ) | |
| (146 | ) |
General and administrative expenses(3) | |
| (266 | ) | |
| (294 | ) | |
| (308 | ) | |
| (323 | ) | |
| (338 | ) | |
| (354 | ) |
Other income | |
| (2 | ) | |
| - | | |
| - | | |
| - | | |
| - | | |
| - | |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Non-U.S. GAAP Adjusted Operating Income | |
| 465 | | |
| 386 | | |
| 501 | | |
| 703 | | |
| 805 | | |
| 845 | |
Interest income | |
| 21 | | |
| 14 | | |
| 15 | | |
| 23 | | |
| 38 | | |
| 55 | |
Interest expense | |
| (23 | ) | |
| (16 | ) | |
| (8 | ) | |
| - | | |
| - | | |
| - | |
Loss from equity investment | |
| (1 | ) | |
| - | | |
| - | | |
| - | | |
| - | | |
| - | |
Total non-operating income | |
| 78 | | |
| 60 | | |
| 60 | | |
| 50 | | |
| 48 | | |
| 48 | |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Non-U.S.
GAAP Adjusted Profit Before Tax | |
| 540 | | |
| 444 | | |
| 568 | | |
| 776 | | |
| 891 | | |
| 948 | |
Income tax expense | |
| (162 | ) | |
| (126 | ) | |
| (158 | ) | |
| (213 | ) | |
| (245 | ) | |
| (261 | ) |
Non-controlling interests | |
| (5 | ) | |
| (3 | ) | |
| (4 | ) | |
| (5 | ) | |
| (5 | ) | |
| (5 | ) |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Non-U.S.
GAAP Adjusted Net Income Attributable to Ordinary Shareholders | |
| 372 | | |
| 314 | | |
| 406 | | |
| 558 | | |
| 641 | | |
| 683 | |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Depreciation and amortization | |
| 816 | | |
| 859 | | |
| 897 | | |
| 916 | | |
| 916 | | |
| 934 | |
Non-U.S. GAAP Adjusted EBITDA(4) | |
| 1,357 | | |
| 1,305 | | |
| 1,457 | | |
| 1,669 | | |
| 1,769 | | |
| 1,827 | |
CAPEX | |
| 857 | | |
| 1,017 | | |
| 918 | | |
| 772 | | |
| 742 | | |
| 691 | |
Share-based compensation | |
| 86 | | |
| 91 | | |
| 96 | | |
| 101 | | |
| 107 | | |
| 112 | |
Notes:
(1) |
In units of RMB in millions rounded
to the nearest whole integer. |
(2) |
These projections were prepared by the Company’s management during the fourth quarter
of 2015. At the time these projections were prepared, the audit for the fiscal year ended December 31, 2015 had not been completed.
Accordingly, management estimates for fiscal year 2015 may vary materially from our audited financial statements. |
(3) |
Non-cash share-based compensation is excluded. |
(4) |
Adjusted EBITDA is defined as adjusted profit before tax, interest income, interest expense,
depreciation and amortization and including income or loss attributable to non-controlling interests. |
Certain of the prospective financial information
prepared by the Company and included in the Company Projections may be considered non-U.S. GAAP financial measures. These non-U.S.
GAAP measures are presented because management believes that they are useful financial indicators of the Company’s performance.
The Company’s non-U.S. GAAP adjusted operating expenses, non-U.S. GAAP adjusted operating income, non-U.S. GAAP adjusted
profit before tax, non-U.S. GAAP adjusted net income attributable to ordinary shareholders and non-U.S. GAAP EBITDA vary from
the most comparable U.S. GAAP financial measures in that the non-U.S. GAAP measures do not include share-based compensation expense,
amortization of integration costs from acquisitions or changes in fair value of the Company’s convertible notes or foreign
exchange gain and loss. Share-based compensation expense has not been included in these forward-looking projections because management
believes that, due to varying valuation methodologies, subjective assumptions and varying award types, the exclusion of share-based
compensation charges provide for more accurate comparisons to the Company’s peer companies. Although management uses these
measures to assess the performance of the Company’s business compared to that of others in the industry, the use of these
non-U.S. GAAP measures is limited because it does not include share-based compensation expense and foreign exchange gain and loss
that may be material in amount and is necessary to operate the Company’s business or amortization of integration costs from
acquisitions and changes in fair value of the Company’s convertible notes. As such, these non-U.S. GAAP measures should
not be relied upon as alternatives to results prepared and presented in accordance with U.S. GAAP. Such measures are not defined
under U.S. GAAP and, accordingly, non-GAAP financial measures should not be considered in isolation from, or as a substitute for,
financial information presented in compliance with GAAP, and non-GAAP financial measures as used by the Company may not be comparable
measurements to results reported or forecasted by other companies.
A reconciliation of the non-U.S. GAAP measures
used in the Company Projections with the most comparable financial measures calculated and presented in accordance with U.S. GAAP
is set forth below.
| |
U.S.
GAAP Reconciliation of Company Projections | |
| |
Fiscal Year Ending | |
| |
December 31, | |
RMB in
millions(1) | |
2015E | | |
2016E | | |
2017E | | |
2018E | | |
2019E | | |
2020E | |
| |
| | |
| | |
| | |
| | |
| | |
| |
1. Operating Expenses | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
U.S. GAAP total leased-and-operated
hotels operating costs | |
| (5,191 | ) | |
| (5,614 | ) | |
| (6,060 | ) | |
| (6,370 | ) | |
| (6,577 | ) | |
| (6,779 | ) |
Share-based compensation(2) | |
| 7 | | |
| 7 | | |
| 7 | | |
| 7 | | |
| 6 | | |
| 6 | |
Integration cost | |
| 5 | | |
| 5 | | |
| 5 | | |
| 4 | | |
| 4 | | |
| 4 | |
Non-U.S. GAAP Adjusted Leased-and-operated
Hotels Operating Costs | |
| (5,179 | ) | |
| (5,602 | ) | |
| (6,048 | ) | |
| (6,360 | ) | |
| (6,567 | ) | |
| (6,769 | ) |
2. Operating Income | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
U.S. GAAP Income from Operations | |
| 373 | | |
| 289 | | |
| 398 | | |
| 597 | | |
| 694 | | |
| 729 | |
Share-based compensation(3) | |
| 86 | | |
| 91 | | |
| 96 | | |
| 101 | | |
| 107 | | |
| 112 | |
Integration cost | |
| 6 | | |
| 6 | | |
| 6 | | |
| 4 | | |
| 4 | | |
| 4 | |
Non-U.S. GAAP Adjusted Income
from Operations | |
| 465 | | |
| 386 | | |
| 501 | | |
| 703 | | |
| 805 | | |
| 845 | |
3. Profit Before Tax | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
U.S. GAAP Profit Before Tax | |
| 377 | | |
| 347 | | |
| 465 | | |
| 671 | | |
| 780 | | |
| 832 | |
Share-based compensation(3) | |
| 86 | | |
| 91 | | |
| 96 | | |
| 101 | | |
| 107 | | |
| 112 | |
Integration cost | |
| 6 | | |
| 6 | | |
| 6 | | |
| 4 | | |
| 4 | | |
| 4 | |
Loss on buy-back of convertible
notes | |
| 2 | | |
| | | |
| | | |
| | | |
| | | |
| | |
Loss on change in fair value
of convertible notes | |
| 28 | | |
| | | |
| | | |
| | | |
| | | |
| | |
Foreign exchange loss | |
| 41 | | |
| | | |
| | | |
| | | |
| | | |
| | |
Non-U.S. GAAP Adjusted Profit Before
Tax | |
| 540 | | |
| 444 | | |
| 568 | | |
| 776 | | |
| 891 | | |
| 948 | |
4. Net Income Attributable
to Ordinary Shareholders | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
U.S. GAAP Net Income Attributable to Ordinary
Shareholders | |
| 210 | | |
| 217 | | |
| 304 | | |
| 453 | | |
| 530 | | |
| 566 | |
Share-based compensation(3) | |
| 86 | | |
| 91 | | |
| 96 | | |
| 101 | | |
| 107 | | |
| 112 | |
Integration cost | |
| 6 | | |
| 6 | | |
| 6 | | |
| 4 | | |
| 4 | | |
| 4 | |
Loss on
buy-back of convertible notes(4) | |
| 2 | | |
| | | |
| | | |
| | | |
| | | |
| | |
Loss on
change in fair value of convertible notes(4) | |
| 28 | | |
| | | |
| | | |
| | | |
| | | |
| | |
Foreign
exchange loss(5) | |
| 41 | | |
| | | |
| | | |
| | | |
| | | |
| | |
Non-U.S. GAAP Adjusted Net
Income Attributable to Ordinary Shareholders | |
| 372 | | |
| 314 | | |
| 406 | | |
| 558 | | |
| 641 | | |
| 683 | |
5. EBITDA | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
U.S. GAAP Net Income Attributable to Ordinary
Shareholders | |
| 210 | | |
| 217 | | |
| 304 | | |
| 453 | | |
| 530 | | |
| 566 | |
Net interest expense | |
| 2 | | |
| 2 | | |
| (7 | ) | |
| (23 | ) | |
| (38 | ) | |
| (55 | ) |
Non-controlling interests | |
| 5 | | |
| 3 | | |
| 4 | | |
| 5 | | |
| 5 | | |
| 5 | |
Income tax expense | |
| 162 | | |
| 126 | | |
| 158 | | |
| 213 | | |
| 245 | | |
| 261 | |
Depreciation and amortization | |
| 816 | | |
| 859 | | |
| 897 | | |
| 916 | | |
| 916 | | |
| 934 | |
Share-based compensation(3) | |
| 86 | | |
| 91 | | |
| 96 | | |
| 101 | | |
| 107 | | |
| 112 | |
Integration cost | |
| 6 | | |
| 6 | | |
| 6 | | |
| 4 | | |
| 4 | | |
| 4 | |
Loss on buy-back of convertible
notes(4) | |
| 2 | | |
| | | |
| | | |
| | | |
| | | |
| | |
Loss on
change in fair value of convertible notes(4) | |
| 28 | | |
| | | |
| | | |
| | | |
| | | |
| | |
Foreign exchange loss(5) | |
| 41 | | |
| | | |
| | | |
| | | |
| | | |
| | |
Non-U.S. GAAP EBITDA | |
| 1,357 | | |
| 1,305 | | |
| 1,457 | | |
| 1,669 | | |
| 1,769 | | |
| 1,827 | |
Notes:
(1) |
In units of RMB in millions rounded to the nearest whole
integer. |
(2) |
Reflects non-cash share-based compensation associated with leased-and-operated hotels operations
(excluding general and administrative costs and sales and marketing expenses). |
(3) |
Reflects all non-cash share-based compensation, including
general and administrative costs and sales and marketing expenses. |
(4) |
Reflects payment in full of all outstanding amounts due under the Company’s US$ settled
2.00% convertible senior notes due December 2015. |
(5) |
Reflects foreign exchange loss associated with payment in full of all outstanding amounts
due under the Company’s US dollar settled 2.00% convertible senior notes due December 2015. |
In reconciling
non-U.S. GAAP adjusted operating expenses, non-U.S. GAAP adjusted operating income, non-U.S. GAAP adjusted profit before tax,
non-U.S. GAAP adjusted net income attributable to ordinary shareholders and non-U.S. GAAP EBITDA with the most comparable financial
measures calculated in accordance with U.S. GAAP, the Company has adjusted for non-cash share-based compensation charges relating
to share option grants and restricted share units, amortization of integration costs from acquisitions and changes in fair value
of the Company’s convertible notes in accordance with relevant accounting guidance and the foreign exchange gain/loss. The
calculation of future share-based compensation expense requires the Company to speculate regarding the various factors that underlie
calculation of the share-based compensation charge for each of those awards, including speculation regarding future prices of
the Company’s Shares and regarding the factors pertinent to the Company’s Black-Scholes pricing model, such as volatility
of the price of the Company’s Shares (determined based on NASDAQ trading price of the ADSs, each of which represent two
Shares) over the term of the related awards, the expected term of the awards, the risk-free interest rate and the award forfeiture
rate, in order to determine the fair value of the awards on the grant dates and amortize that expense over the respective vesting
periods, and speculation regarding future levels of hiring over a six-year period, the types of personnel hired, the type and
amount of equity compensation awards that would be necessary for such hiring, the vesting terms of such awards and the timing
of each such award. In preparing the reconciliations with U.S. GAAP financial measures provided in the tables above, the Company
made a number of assumptions in forecasting future share-based compensation expense, mainly that the Company’s hiring levels
would increase in line with its historical hiring levels, the terms of the equity incentive awards and various equity incentive
plans, including vesting periods, would be substantially the same as the Company’s Share Incentive Plan, award forfeiture
rates would be consistent with historical forfeiture rates, and future prices of the Company’s Shares would correlate with
the average revenue, operating expenses, net income attributable to ordinary shareholders and EBITDA values as projected by the
Company’s management (with reference to the value of the Company’s historical Share prices (determined based on NASDAQ
trading price of the ADSs, each of which represent two Shares) relative to its average revenue, operating expenses, net income
attributable to ordinary shareholders and EBITDA values at the relevant times). The amortization of integration costs from acquisitions
was calculated on a straight-line basis in accordance with U.S. GAAP based on the Company’s historical accounting practices.
In reconciling non-U.S. GAAP adjusted net income attributable to ordinary shareholders with the most comparable financial measures,
we did not calculate any tax implications associated with such adjustments. This information is included in this proxy statement
in order to reconcile the non-U.S. GAAP financial measures that were presented in the Company Projections with the most comparable
financial measures calculated in accordance with U.S. GAAP. However, this information was not provided to the Board, the Special
Committee, the financial advisor to the Special Committee, the Buyer Group or the financial advisors to the Buyer Group.
The financial projections and forecasts included
in this proxy statement should not be considered in isolation or in lieu of the Company’s operating and other financial
information determined in accordance with U.S. GAAP. See “Financial Information—Selected Historical Financial Information”
beginning on page 101.
The financial projections and forecasts included
in this proxy statement are forward-looking statements. For information on factors that may cause our future financial results
to materially vary, see “Cautionary Note Regarding Forward-Looking Statements” beginning on page 108 and “Item
3. Key Information—D. Risk Factors” included in our Annual Report on Form 20-F for the fiscal year ended December
31, 2014, incorporated by reference into this proxy statement.
For the foregoing reasons, as well as the bases
and assumptions on which the financial projections and forecasts were compiled, the inclusion of specific portions of the financial
projections and forecasts in this proxy statement should not be regarded as an indication that the Company, the Special Committee
or the Board considers such financial projections or forecasts to be an accurate prediction of future events, and the projections
and forecasts should not be relied on as such an indication. No one has made or is making any representation to any shareholders
of the Company or anyone else regarding the information included in the financial projections and forecasts discussed above.
NONE OF THE COMPANY OR ITS AFFILIATES, ADVISORS,
OFFICERS, DIRECTORS OR REPRESENTATIVES HAS MADE OR MAKES ANY REPRESENTATION TO ANY SHAREHOLDER OR OTHER PERSON REGARDING THE ULTIMATE
PERFORMANCE OF THE COMPANY COMPARED TO THE INFORMATION CONTAINED IN THE COMPANY PROJECTIONS OR THAT PROJECTED RESULTS WILL BE
ACHIEVED.
BY INCLUDING IN THIS PROXY STATEMENT A SUMMARY
OF ITS FINANCIAL PROJECTIONS AND FORECASTS INCLUDED IN THE COMPANY PROJECTIONS, THE COMPANY UNDERTAKES NO OBLIGATIONS TO UPDATE,
OR PUBLICLY DISCLOSE ANY UPDATE TO, THESE FINANCIAL PROJECTIONS TO REFLECT CIRCUMSTANCES OR EVENTS, INCLUDING UNANTICIPATED EVENTS,
THAT MAY HAVE OCCURRED OR THAT MAY OCCUR AFTER THE PREPARATION OF THESE PROJECTIONS, EVEN IN THE EVENT THAT ANY OR ALL OF THE
ASSUMPTIONS UNDERLYING THE FINANCIAL PROJECTIONS ARE SHOWN TO BE IN ERROR OR CHANGE, EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE
FEDERAL SECURITIES LAW.
Opinions of the Special Committee’s Financial Advisor
Credit Suisse was retained by the Special Committee
to act as its financial advisor in connection with the Proposed Transaction. On December 5, 2015, Credit Suisse delivered its
oral opinion, subsequently confirmed in writing to the Special Committee by delivery of Credit Suisse’s written opinion
dated December 5, 2015, to the effect that, as of December 5, 2015 and subject to the limitations, qualifications and assumptions
set forth therein, each of the Per Share Merger Consideration and the Per ADS Merger Consideration to be received by the Non-Rollover
Security Holders was fair, from a financial point of view, to the Non-Rollover Security Holders.
Credit Suisse’s opinion was directed
to the Special Committee, and only addressed, as of December 5, 2015, the fairness, from a financial point of view, to the Non-Rollover
Security Holders of each of the Per Share Merger Consideration and the Per ADS Merger Consideration to be received in the Merger
by such holders and did not address any other aspect or implication of the Merger. The summary of Credit Suisse’s opinion
in this proxy statement is qualified in its entirety by reference to the full text of its written opinion, which is included as
Annex C to this proxy statement and sets forth the procedures followed, assumptions made, qualifications and limitations on the
review undertaken and other matters considered by Credit Suisse in connection with the preparation and rendering of its opinion.
Therefore, you should read the opinion in its entirety for these assumptions, qualifications, limitations and other matters. However,
neither Credit Suisse’s written opinion nor the summary of its opinion and the related analyses set forth in this proxy
statement is intended to be, and they do not constitute, advice or a recommendation to any holder of Shares as to how such holder
should vote or act with respect to any matter relating to the Merger or otherwise.
In arriving at its opinion, Credit Suisse:
| · | reviewed
a draft, received on December 5, 2015, of the Merger Agreement and certain related agreements; |
| · | reviewed
certain publicly available business and financial information relating to the Company; |
| · | reviewed
certain other information relating to the Company, including the Company Projections
provided to and discussed with Credit Suisse by the management of the Company; |
| · | participated
in discussions with the Company’s management regarding the business and prospects
of the Company; |
| · | considered
certain financial and stock market data of the Company, and compared that data with similar
data for other publicly held companies in businesses Credit Suisse deemed similar to
that of the Company; |
| · | considered,
to the extent publicly available, the financial terms of certain other business combinations
and other transactions which had been recently effected or announced; and |
| · | considered
such other information, financial studies, analyses and investigations and financial,
economic and market criteria which Credit Suisse deemed relevant. |
In connection with its review, Credit Suisse
did not independently verify any of the foregoing information and assumed and relied on such information being complete and accurate
in all material respects. With respect to the financial forecasts for the Company, at the direction of the Special Committee,
Credit Suisse assumed, that the Company Projections were reasonably prepared on bases of and reflecting the collective best estimates
and judgments of the Company’s management, based on information reasonably available to them as of the date of such opinion,
as to the future financial performance of the Company. In addition, the Special Committee instructed Credit Suisse to use the
Company Projections in evaluating, and Credit Suisse assumed with the Special Committee’s approval that the Company Projections
represented as of the date of such opinion a reasonable basis upon which to evaluate, the fairness, from a financial point of
view, of each of the Per Share Merger Consideration and the Per ADS Merger Consideration to the Non-Rollover Security Holders.
Credit Suisse also assumed, with the Special
Committee’s consent, that, in the course of obtaining any regulatory or third party consents, approvals or agreements in
connection with the Merger, no delay, limitation, restriction or condition will be imposed that would have an adverse effect on
the Company and that the Merger will be consummated in accordance with the terms of the Merger Agreement without waiver, modification
or amendment of any material term, condition or agreement thereof. In rendering its opinion, Credit Suisse also assumed with the
Special Committee’s approval that the final Merger Agreement, when executed, would conform to the draft Merger Agreement
Credit Suisse reviewed in all respects material to Credit Suisse’s analyses and opinion. Furthermore, Credit Suisse was
not requested to make, and did not make, an independent evaluation or appraisal of the assets or liabilities (contingent or otherwise)
of the Company, nor was it furnished with any such evaluations or appraisals.
Credit Suisse’s opinion only addressed
the fairness, from a financial point of view, to the Non-Rollover Security Holders of the Per Share Merger Consideration and the
Per ADS Merger Consideration to be received by such Non-Rollover Security Holders in the Merger pursuant to the Merger Agreement
and did not address any other aspect or implication of the Merger or any other agreement, arrangement or understanding entered
into in connection with the Merger or otherwise including, without limitation, the fairness of the amount or nature of, or any
other aspect relating to: (i) any compensation or consideration to be received or otherwise payable to any officers, directors,
employees, security holders or affiliates of any party to the Merger, or class of such persons, relative to the Per Share Merger
Consideration, the Per ADS Merger Consideration or otherwise; or (ii) any consideration to be received by any Rollover Shareholders
or their respective affiliates from BTG Hotels or its affiliates in connection with or shortly after the completion of the Merger
whether in exchange for their Shares, in exchange for their shares in the surviving company of the Merger or otherwise. With the
Special Committee’s consent, for purposes of Credit Suisse’s analyses, Credit Suisse assumed each ADS to be identical
in all respects, and to have a value equivalent to two Shares. Furthermore, no opinion, counsel or interpretation was intended
regarding matters that require legal, regulatory, accounting, insurance, tax, executive compensation, environmental or other similar
professional advice. Credit Suisse assumed that the Special Committee and the Company had or would obtain any such advice or opinions
from appropriate professional sources.
Credit Suisse’s opinion was necessarily
based upon information made available to Credit Suisse as of the date of Credit Suisse’s opinion and financial, economic,
market and other conditions as they existed and could be evaluated on the date of such opinion. Credit Suisse did not undertake,
and is under no obligation, to update, revise, reaffirm or withdraw its opinion, or otherwise comment on or consider events occurring
or coming to Credit Suisse’s attention after the date of its opinion. Credit Suisse’s opinion did not address the
relative merits of the Merger as compared to alternative transactions or strategies that might have been available to the Company
nor did it address the Company’s underlying decision to proceed with the Merger and not pursue other strategic, financial
or other business alternatives. The issuance of Credit Suisse’s opinion was approved by Credit Suisse’s authorized
internal committee.
In preparing its opinion to the Special
Committee, Credit Suisse performed a variety of analyses, including those described below. The summary of such financial analyses
described below is not a complete description of the analyses underlying such opinion. The preparation of such an opinion is a
complex process involving various quantitative and qualitative judgments and determinations with respect to the financial, comparative
and other analytic methods employed and the adaptation and application of those methods to the unique facts and circumstances
presented. As a consequence, neither Credit Suisse’s opinion nor the analyses underlying its opinion are readily susceptible
to partial analysis or summary description. Credit Suisse arrived at its opinion based on the results of all analyses undertaken
by it and assessed as a whole and did not draw, in isolation, conclusions from or with regard to any individual analysis, analytic
method or factor. Accordingly, Credit Suisse believes that its analyses must be considered as a whole and that selecting portions
of its analyses, analytic methods and factors, without considering all analyses, analytic methods and factors or the narrative
description of the analyses, could create a misleading or incomplete view of the processes underlying its analyses and opinion.
In performing its analyses, Credit Suisse
considered business, economic, industry and market conditions, financial and otherwise, and other matters as they existed on,
and could be evaluated as of, the date of its opinion. No company, business or transaction used in Credit Suisse’s analyses
for comparative purposes is identical to the Company or the Merger. While the results of those analyses were taken into account
in reaching its overall conclusion with respect to fairness, Credit Suisse did not make separate or quantifiable judgments regarding
individual analyses. The implied valuation reference ranges indicated by Credit Suisse’s analyses are illustrative and not
necessarily indicative of actual values nor predictive of future results or values, which may be significantly more or less favorable
than those suggested by the analyses. In addition, any analyses relating to the value of assets, businesses or securities do not
purport to be appraisals or to reflect the prices at which businesses or securities actually may be sold, which may depend on
a variety of factors, many of which are beyond the Company’s control and the control of Credit Suisse. Much of the information
used in, and accordingly the results of, Credit Suisse’s analyses are inherently subject to substantial uncertainty.
Credit Suisse’s opinion and analyses
were provided to the Special Committee (in its capacity as such) in connection with its consideration of the Merger and did not
constitute a recommendation to the Special Committee or the Board with respect to the Proposed Transaction or advice or a recommendation
to any holder of Shares as to how such holder should vote or act on any matter relating to the Merger or otherwise. In addition,
Credit Suisse’s opinion and analyses were among many factors considered by the Special Committee in evaluating the Merger.
Neither Credit Suisse’s opinion nor its analyses were determinative of either of the Per Share Merger Consideration or the
Per ADS Merger Consideration or of the views of the Special Committee with respect to the Merger.
The following is a summary of the material
financial analyses performed by Credit Suisse for the Special Committee in connection with Credit Suisse’s opinion rendered
to the Special Committee on December 5, 2015. The analyses summarized below include information presented in tabular format. The
tables alone do not constitute a complete description of the analyses. Considering the data in the tables below without considering
the full narrative description of the analyses, as well as the methodologies underlying, and the assumptions, qualifications and
limitations affecting, each analysis, could create a misleading or incomplete view of Credit Suisse’s analyses.
For purposes of its analyses, Credit Suisse
reviewed a number of financial metrics, including:
| · | Enterprise
Value—generally the value as of a specified date of the relevant company’s
outstanding equity securities (taking into account its options and other outstanding
convertible securities) plus the value as of such date of its net debt (the value of
its outstanding indebtedness and non-controlling interest less the amount of cash and
cash equivalents and short-term investments on its balance sheet). In respect of the
enterprise value of the Company, the fair value of the Company’s convertible notes
outstanding as of September 30, 2015 was treated as debt, as the per Share conversion
price of such convertible notes is higher than the Per Share Merger Consideration. |
| · | Equity
Value—generally the value as of a specified date of the relevant company’s
outstanding equity securities (taking into account its options and other outstanding
convertible securities). |
| · | EBITDA—generally
the amount of the relevant company’s earnings before interest, taxes, depreciation
and amortization, and also before share-based compensation expense and minority interest
expense, for a specified time period. |
| · | Net
Income—generally the amount of the relevant company’s earnings, excluding
share-based compensation expense on a pre-tax basis. |
Selected Company Analysis
Credit Suisse considered certain financial
data for the Company and China Lodging Group, Limited (“CLG”), the only major publicly traded peer in China’s
economy hotel sector with similar operations and businesses as the Company that is listed in the U.S.
Share price for the Company used in the
selected company analysis described below was as of June 9, 2015, before the announcement of receipt of the Proposal Letter by
the Proposal Parties. Share price for CLG used in the selected company analysis described below was as of December 3, 2015. The
estimates of the Company’s future financial performance for the calendar years ending December 31, 2015 and December 31,
2016 used in the selected company analysis described below were based on the Company Projections. Estimates of the future financial
performance of CLG for the calendar years ending December 31, 2015 and December 31, 2016 were based on publicly available research
analyst estimates for CLG.
The financial data reviewed included:
| · | Enterprise
Value as a multiple of estimated EBITDA for the calendar year ended December 31, 2015,
or “CY 2015E EBITDA.” |
| · | Enterprise
Value as a multiple of estimated EBITDA for the calendar year ending December 31, 2016,
or “CY 2016E EBITDA.” |
| · | Equity
Value as of market close on June 9, 2015 for the Company and December 3, 2015 for CLG
as a multiple of estimated Net Income for the calendar year ended December 31, 2015,
or “CY 2015E Net Income.” |
| · | Equity
Value as of market close on June 9, 2015 for the Company and December 3, 2015 for CLG
as a multiple of estimated Net Income for the calendar year ending December 31, 2016,
or “CY 2016E Net Income.” |
The Company and CLG’s trading multiples
were:
| |
Enterprise Value | | |
Equity Value | |
| |
CY 2015E
EBITDA | | |
CY 2016E
EBITDA | | |
CY 2015E
Net Income | | |
CY 2016E
Net Income | |
The Company | |
| 6.1 | x | |
| 6.3 | x | |
| 22.9 | x | |
| 27.2 | x |
China Lodging Group, Limited | |
| 8.6 | x | |
| 7.5 | x | |
| 26.1 | x | |
| 21.9 | x |
Taking into account this trading multiples
analysis and other factors that Credit Suisse considered appropriate, including but not limited to qualitative judgments involving
non-mathematical considerations, historical trading multiples of the Company and CLG and the fact that the Company had been historically
trading at a discount to CLG over the past five years, Credit Suisse applied Enterprise Value/EBITDA multiple ranges of 6.5x to
9.0x to the Company’s CY 2015E EBITDA, 6.0x to 8.0x to the Company’s CY 2016E EBITDA, Equity Value/Net Income multiple
ranges of 20.0x to 30.0x to the Company’s CY 2015E Net Income and 16.0x to 25.0x to the Company’s CY 2016E Net Income.
Based on the CY 2015E and CY 2016E EBITDA of the Company, the implied valuation reference range was US$25.69 to US$39.31 per ADS,
as compared to the Per ADS Merger Consideration of US$35.80. Based on the CY 2015E and CY 2016E Net Income of the Company, the
implied valuation reference range was US$15.91 to US$35.17 per ADS, as compared to the Per ADS Merger Consideration of US$35.80.
Selected Transactions Analysis
Credit Suisse also considered the financial
terms of certain business combinations and other transactions Credit Suisse deemed relevant. The selected transactions were selected
because the target companies were considered similar to the Company as (1) their primary business is operating economy hotels
and (2) the hotels operated by them are located in China. Credit Suisse also reviewed certain other business combinations transactions
in the hotel and leisure sector for reference only, as the target companies involved in these transactions had different geographic
coverage or demographic focus from that of the Company. The financial data reviewed included:
| · | the
Enterprise Value (based on the consideration proposed to be paid in the selected transactions
as of the date of announcement) as a multiple of EBITDA for the last twelve months, or
“LTM EBITDA”; and |
| · | the
Equity Value (based on the consideration proposed to be paid in the selected transactions
as of the date of announcement) as a multiple of Net Income for the last twelve months,
or “LTM Net Income”. |
The selected transactions and corresponding
multiples were:
Date
Announced | |
Acquiror | |
Target | |
Enterprise Value /LTM
EBITDA | | |
Equity Value /LTM
Net Income | |
| |
| |
| |
| |
September 2015 | |
Shanghai Jin Jiang International Hotels Development Co., Ltd. | |
Plateno Group Limited | |
| 12.4 | x(1) | |
| 36.7 | x(1) |
February 2013 | |
Private equity investors and management | |
7 Days Group Holdings Limited | |
| 6.9 | x(2) | |
| 21.1 | x(2) |
May 2011 | |
The Company | |
Motel 168 International Holdings Limited | |
| 11x-12 | x(3) | |
| n.a. | |
1. |
Calculated based on balance
sheet data as of June 30, 2015, and EBITDA and Net Income for the year ended December 31, 2014. The transaction is an all
cash transaction with a price adjustment mechanism. The multiples calculated are based on headline numbers without adjustments. |
2. |
Calculated based on balance sheet data as of
March 31, 2013, and EBITDA and Net Income for the year ended December 31, 2012. |
3. |
Calculated based on the Enterprise Value as
of the announcement date and EBITDA for the year ended December 31, 2010; EBITDA applied excluding impact of 2010 Shanghai
Expo (normalized) per management presentation transcript dated May 27, 2011. |
Taking into account the results of this
transaction multiples analysis by referencing the full multiple range derived from these selected transactions and other factors
that Credit Suisse considered appropriate, including qualitative judgments involving non-mathematical considerations, Credit Suisse
applied a multiple range of 7.0x to 12.0x to the Company’s Enterprise Value/LTM EBITDA as of September 30, 2015 and 25.0x
to 35.0x to the Company’s Equity Value/LTM Net Income as of September 30, 2015. The selected transactions analysis indicated
an implied valuation reference range of US$32.32 to US$53.96 per ADS based on the Enterprise Value/LTM EBITDA multiples and US$33.38
to US$46.44 based on the Equity Value/LTM Net Income multiples, as compared to the Per ADS Merger Consideration of US$35.80.
Discounted Cash Flow Analysis
Credit Suisse also performed a discounted
cash flow analysis of the Company by calculating the estimated net present value of the projected after-tax, unlevered free cash
flow of the Company based on the Company Projections. Credit Suisse applied a range of terminal value multiples of 6.0x to 8.0x
to the Company’s estimated EBITDA for the year ending December 31, 2020 and discount rates ranging from 9.5% to 11.5%. The
discounted cash flow analysis of the Company based on the Company Projections indicated an implied valuation reference range of
US$26.49 to US$36.16 per ADS, as compared to the Per ADS Merger Consideration of US$35.80.
Other Considerations
In addition to the financial analyses summarized
above, for information purposes, Credit Suisse also reviewed the historical trading prices of the Shares, the premium paid in
certain going private transactions involving Chinese companies listed in the U.S., certain publicly available equity research
analyst price targets for the Shares, and trends in the historical trading multiples of the Company and CLG.
Other Matters
The Special Committee retained Credit Suisse
as its financial advisor in connection with the Proposed Transaction based on Credit Suisse’s qualifications, experience
and reputation as an internationally recognized investment banking and financial advisory firm. Credit Suisse became entitled
to receive a fee of $1,000,000 upon the rendering of its opinion. Credit Suisse will also receive a transaction fee of $500,000
for its services contingent upon the consummation of the Merger or the receipt by the Company of a termination fee pursuant to
the Merger Agreement and an additional advisory fee of $250,000 payable upon the consummation of the Merger in the event of certain
contingent developments in respect of the Merger or transactions contemplated by the Merger Agreement. In certain circumstances,
Credit Suisse will also become entitled to receive a transaction fee upon the consummation of a sale of the Company, or a business
combination or other similar transaction involving the Company (in each case, other than the Merger). In addition, the Company
agreed to reimburse certain of Credit Suisse’s expenses and to indemnify Credit Suisse and certain related parties for certain
liabilities and other items arising out of or related to its engagement.
Credit Suisse and its affiliates have in
the past provided, and in the future may provide, investment banking and other financial services to the Company and its affiliates,
for which Credit Suisse and its affiliates have received, and would expect to receive, compensation. Credit Suisse and its affiliates
also have in the past provided investment banking and other financial services to certain Rollover Shareholders and certain entities
affiliated or associated with the Rollover Shareholders, for which Credit Suisse and its affiliates have received compensation.
In addition, Credit Suisse and its affiliates in the future may provide investment banking and other financial services to the
Company, BTG Hotels, Holdco, the Rollover Shareholders or entities affiliated or associated therewith, for which Credit Suisse
and its affiliates would expect to receive compensation. Neither Credit Suisse nor its affiliates received any compensation from
the Company or its affiliates in the past two years. Credit Suisse is a full service securities firm engaged in securities trading
and brokerage activities as well as providing investment banking and other financial services. In the ordinary course of business,
Credit Suisse and its affiliates may acquire, hold or sell, for its and its affiliates own accounts and the accounts of customers,
equity, debt and other securities and financial instruments (including bank loans and other obligations) of the Company, BTG Hotels,
the Rollover Shareholders and any other entity that may be involved in the Merger, as well as provide investment banking and other
financial services to such entities and individuals.
Valuation Report of the Financial Advisors for BTG Hotels
BTG Hotels retained Huatai Securities and
CITIC Securities to act as its financial advisors in connection with BTG Hotels’ acquisition of the beneficial ownership
of certain equity interest in the Company, including the Merger. Huatai Securities and CITIC Securities have delivered to BTG
Hotels, at its request, a valuation report regarding its acquisition of equity interests in the Company and Poly Victory, dated
December 23, 2015, to the effect that, for one year since October 31, 2015 and based upon and subject to the assumptions,
limitations, qualifications and conditions described in such report, the merger consideration to be paid in the Merger pursuant
to the Merger Agreement was reasonable and fair to BTG Hotels from a financial point of view.
The valuation report of Huatai Securities
and CITIC Securities was prepared to satisfy the requirements of the PRC laws and regulations applicable to BTG Hotels as a company
listed on the Shanghai Stock Exchange. Specifically, in connection with any proposed transaction that would qualify as a “material
asset reorganization” by a PRC-listed company, the China Securities Regulatory Commission requires the listed company to
prepare and file a valuation report or asset appraisal report, as well as publish and file with the relevant securities exchange
such report no later than contemporaneously with the listed company’s notice calling for a shareholders’ meeting of
the listed company for the purpose of voting upon the authorization and approval of the proposed transaction. The valuation report
of Huatai Securities and CITIC Securities was filed with the Shanghai Stock Exchange on December 25, 2015 and is publicly available
on its website.
The valuation report of Huatai Securities
and CITIC Securities makes no comment on whether or not the Merger is fair to any shareholder of the Company, including the Company’s
Unaffiliated Security Holders, either from a financial point of view or otherwise. Evaluating the fairness of the Merger to the
Company’s shareholders, including the Company’s Unaffiliated Security Holders, was not part of the scope of work of
Huatai Securities and CITIC Securities. Huatai Securities and CITIC Securities did not perform such work and hold no view on the
fairness of the Merger to the Company’s shareholders, including the Company’s Unaffiliated Security Holders.
The following is a summary of the material
analyses performed by Huatai Securities and CITIC Securities in connection with its valuation report rendered to BTG Hotels.
Selected Comparable Public Companies Analysis
Using publicly available information, Huatai
Securities and CITIC Securities compared certain financial information of the Company with corresponding financial information
of selected comparable public companies whose securities are traded in the United States and primarily engaged in the business
of operating midscale to lower-end and economy hotels, which is similar to the business of the Company.
Although the selected public companies
were compared to the Company for purposes of this analysis, none of the selected public companies is identical or directly comparable
to the Company. For each of the selected public companies, Huatai Securities and CITIC Securities calculated the following trading
multiples:
| · | Price
per share to earnings per share ratio, which is defined as the closing price per share
as of October 31, 2015 divided by the earnings per share for the most recent 12-month
period that had been publicly available as of October 31, 2015; and |
| · | Enterprise
value to EBITDA ratio, which is defined as the enterprise value of the Company as of
October 31, 2015 divided by the earnings before interest, taxes and depreciation and
amortization for the most recent 12-month period that had been publicly available as
of October 31, 2015. |
Certain financial information of the selected
public companies and the Company that was most recent and public available as of October 31, 2015 is set forth below.
| |
Operating
income of 2014 | | |
Net profit
of 2014 | | |
Operation
income for trailing 12 months | | |
Net profit
for trailing 12 months | | |
Total
assets | | |
Total
liabilities | | |
Asset-
liability ratio | |
Company | |
(RMB1 million,
other than percentages) | |
China Lodging Group, Limited | |
| 4,964.7 | | |
| 307.3 | | |
| 5,564.5 | | |
| 412.7 | | |
| 7,214.3 | | |
| 3,720.9 | | |
| 51.6 | % |
Choice Hotels International, Inc. | |
| 4,839.9 | | |
| 786.6 | | |
| 5,327.1 | | |
| 792.4 | | |
| 4,551.3 | | |
| 7,109.2 | | |
| 156.2 | % |
Wyndham Worldwide Corporation | |
| 33,719.7 | | |
| 3,377.7 | | |
| 34,830.7 | | |
| 3,524.6 | | |
| 61,980.2 | | |
| 55,473.7 | | |
| 89.5 | % |
Accor S.A. | |
| 38,052.0 | | |
| 1,555.8 | | |
| 38,979.9 | | |
| 1,814.0 | | |
| 62,289.8 | | |
| 35,065.9 | | |
| 56.3 | % |
InterContinental Hotels Group PL | |
| 11,863.5 | | |
| 2,496.6 | | |
| 11,908.2 | | |
| 3,320.3 | | |
| 20,655.8 | | |
| 23,816.4 | | |
| 115.3 | % |
Homeinns Hotel Group | |
| 6,682.7 | | |
| 513.1 | | |
| 6,628.9 | | |
| 264.7 | | |
| 9,617.9 | | |
| 4,303.2 | | |
| 44.7 | % |
___________________
Sources: Capital IQ and Company information
The trading multiples for each of the selected
companies are set forth below.
Selected Company | |
Price per share /
earnings per share | | |
Enterprise value /
EBITDA | |
China Lodging Group, Limited | |
| 34.43 | x | |
| 9.58 | x |
Choice Hotels International Inc. | |
| 24.39 | x | |
| 16.01 | x |
Wyndham Worldwide Corporation | |
| 17.79 | x | |
| 11.53 | x |
Accor S.A. | |
| 46.88 | x | |
| 10.82 | x |
InterContinental Hotels Group PL | |
| 19.58 | x | |
| 15.50 | x |
Source: Capital IQ.
Based on the above analysis, the reference
range of the price per share to earnings per share ratio for the selected public companies is 17.79x – 46.88x, and the reference
range of the enterprise value to EBITDA ratio is 9.58x – 16.01x. Using the financial information of the Company for the
nine months ended and as of September 30, 2015, the merger consideration implies a price per share to earnings per share ratio
of 41.49x, which is within the reference range, and an enterprise value to EBITDA ratio of 8.48x, which is below the reference
range.
Selected Comparable Transactions Analysis
Huatai Securities and CITIC Securities
compared the price per share to earnings per share ratio and the enterprise value to EBITDA ratio implied by the consideration
paid in four selected transactions involving companies that operate businesses similar to the Company in the PRC. Huatai Securities
and CITIC Securities noted, however, that none of the selected transactions or the companies that participated in the selected
transactions were directly comparable to the Merger or the Company.
Certain financial information of the acquired
companies in the selected comparable transactions and the Company that was most recent and publicly available as of December 7,
2015, the date on which the execution of the Merger Agreement was publicly announced, is set forth below.
| |
Operating income
for trailing 12 months | | |
Net profit for trailing
12 months | | |
Total assets | | |
Total liabilities | | |
Asset- liability
ratio | |
Company | |
(RMB1 million, other than percentages) | |
7 Days Group Holdings Limited | |
| 2,652.7 | | |
| 162.5 | | |
| 2,982.7 | | |
| 1,327.3 | | |
| 44.5 | % |
Group du Louvre | |
| 3,322.4 | | |
| 110.4 | | |
| 9,949.8 | | |
| 6,304.7 | | |
| 63.4 | % |
Shanxi Jinguang Kuajie Hotel Management Company | |
| 101.9 | | |
| 9.8 | | |
| 155.8 | | |
| 45.4 | | |
| 29.1 | % |
Keystone Lodging Holdings Limiteds | |
| 3,403.7 | | |
| 267.0 | | |
| 7,920.2 | | |
| 4,610.2 | | |
| 58.2 | % |
Homeinns Hotel Group | |
| 6,628.9 | | |
| 264.7 | | |
| 9,617.9 | | |
| 4,303.2 | | |
| 44.7 | % |
___________________
Sources: Capital IQ, Wind and Company information
The relevant multiples implied by the consideration
paid in the selected transactions are set forth below.
Selected Transaction | |
Price per share /
earnings per share | | |
Enterprise value
/ EBITDA | |
Going-private transaction involving 7 Days Group Holdings Limited | |
| 24.39 | x | |
| 7.20 | x |
Acquisition of all of the shares of Groupe du Louvre by Shanghai Jin Jiang International Hotels
Development Co., Ltd. (“Jin Jiang”) | |
| 40.70 | x | |
| 15.00 | x |
Acquisition of 70% of equity interest in Shanxi Jinguang Kuaijie Hotel Management Company by
a subsidiary of Jin Jiang | |
| 22.19 | x | |
| 6.15 | x |
Acquisition of approximately 81% of equity interest in Keystone Lodging Holdings Limited by Jin
Jiang | |
| 36.68 | x | |
| 12.38 | x |
Sources: Capital IQ and Mergermarket
Based on the above analysis, the reference
range of the price per share to earnings per share ratio implied by the consideration in the selected transactions is 22.19x –
40.70x, and the reference range of the enterprise value to EBITDA ratio is 6.15x – 15.00x. Using the financial information
of the Company for the nine months ended and as of September 30, 2015, the merger consideration implies a price per share to earnings
per share ratio of 41.49x, which is higher than the reference range, and an enterprise value to EBITDA ratio of 8.48x, which is
within the reference range.
Historical Trading Range Analysis
For the three years ended October 31, 2015,
the high, low and average closing prices of the Company’s ADSs were US$43.70 per ADS, US$22.07 per ADS and US$30.61 per
ADS, respectively, and the volume-weighted average trading price was US$31.40 per ADS. The US$35.80 Per ADS Merger Consideration
was within the range of historical trading prices of the Company’s ADSs.
General
The type and amount of consideration payable
in the Merger were determined through negotiation between the Special Committee and the Buyer Group. Huatai Securities and CITIC
Securities provided advice to the members of the Buyer Group, including BTG Hotels, during these negotiations. Huatai Securities
and CITIC Securities did not, however, recommend any specific merger consideration to the members of the Buyer Group, including
BTG Hotels.
BTG Hotels considered and approached Huatai
Securities and asked it to serve as its financial advisor in connection with the Merger and the Share Exchange because in late
April 2015, when the potential engagement of financial advisors was considered, financial media in China reported that Huatai
Securities was the lead financial advisor to a certain PRC-based company seeking listing in China at the time, which company was
one of the largest China-based companies that had completed a going-private transaction in the United States. The transaction
which Huatai Securities advised on was prominent in China at the time, and demonstrated Huatai Securities’ knowledge and
experience with both China-based companies with offshore holding structures such as the Company and locally-listed PRC companies
such as BTG Hotels.
BTG Hotels considered and approached CITIC
Securities because of the past investing banking services CITIC Securities had provided to BTG and BTG Hotels, including services
related to the acquisition of a PRC company by BTG Hotels and the private placement of shares of a subsidiary of BTG, both in
2014. The engagement in connection with the Merger and the Share Exchange was an extension of the professional relationship BTG
and BTG Hotels established with CITIC Securities through these past experiences.
Huatai Securities and CITIC Securities
were engaged as the financial advisors in connection with the Merger and the Share Exchange as both of them have substantial knowledge
of BTG Hotels, the Company and the hotel industry in China, recognized reputation and experience in providing financial advisory
services in mergers and acquisitions and other business combination and strategic transactions, in particular involving locally-listed
PRC companies such as BTG Hotels, as well as experience with valuation of businesses and securities. On December 6, 2015, the
board of directors of BTG Hotels approved, among other matters, the engagement of Huatai Securities and CITIC Securities as its
financial advisor in connection with the Proposed Transaction, while the formal engagement letter has not been finalized as of
the date of this proxy statement.
Huatai Securities and CITIC Securities
will each receive compensation for financial advisory services provided to the Buyer Group on a series of transactions including
the Merger and the Share Exchange. The aggregate amount of compensation to be received by Huatai Securities and CITIC Securities
as a result of this engagement is expected to be approximately US$5 million, which reflects the Buyer Group’s current expectation
and is subject to further discussion with the financial advisors. The exact amount to be received by each financial advisor has
not been determined as of the date of this proxy statement, and will be determined and paid after the last transaction is completed,
which is expected to be the Share Exchange following completion of the Merger. This arrangement is consistent with common practice
in the market for financial advisory services for PRC-listed companies such as BTG Hotels.
Huatai Securities and CITIC Securities
have, from time to time, provided investment banking and other financial services to certain members of the Buyer Group and their
affiliates. Huatai Securities and CITIC Securities are acting as the financial advisors in connection with the proposed Share
Exchange among BTG Hotels, BTG and the Rollover Shareholders (other than Poly Victory), and Huatai Securities is acting as the
financial advisor to the buyer consortium including certain affiliates of a member of the Buyer Group in a proposed going-private
transaction involving Qihoo 360 Technology Co. Ltd. Huatai Securities and CITIC Securities are expected to receive customary compensation
in connection with these services, while the amount of compensation for their services as financial advisors in connection with
the engagements described above have not been determined as of the date of this proxy statement. In addition, CITIC Securities
acted as the independent financial advisor for BTG Hotels in connection with its acquisition of a PRC company in 2014, for which
it received a financial advisory fee of RMB8.5 million (US$1.3 million). In 2014, CITIC Securities also acted as the sponsor and
private placement agent of China Quanjude Group Co., Ltd., a subsidiary of BTG listed on the Shenzhen Stock Exchange, for which
CITIC Securities received a sponsor and placement agent fee of RMB10.0 million (US$1.5 million).
Copies of the valuation report of Huatai
Securities and CITIC Securities dated December 23, 2015 are available for inspection and copying at the principal executive offices
of BTG Hotels during regular business hours by any interested holder of the Shares or ADSs of the Company or representative who
has been so designated in writing.
Purposes of and Reasons for the Merger
The Buyer Group
Under SEC rules governing going-private
transactions, each member of the Buyer Group is required to express its reasons for the Merger to the Unaffiliated Security Holders
of the Company. The Buyer Group is making the statements included in this section solely for the purpose of complying with the
requirements of Rule 13e-3 and related rules under the Exchange Act. For the Buyer Group, the purpose of the Merger is to enable
the Buyer Group to acquire 100% control of the Company in a transaction in which the Company’s Unaffiliated Security Holders
will be cashed out in exchange for US$35.80 per ADS or US$17.90 per Share, so that the Buyer Group will benefit from the rewards
and bear the risks of sole ownership of the Company after the Merger, including any future earnings and growth of the Company
as a result of improvements to the Company’s operations or acquisitions of other businesses. In addition, assuming the proposed
Share Exchange is successfully completed, which is subject to the satisfaction of certain conditions and is expected to close
after completion of the Merger, it will also allow BTG and the Rollover Shareholders (other than Poly Victory) to maintain a level
of investment in the Company indirectly through their equity ownership in BTG Hotels, as further described in this proxy statement
under “—Interests of Certain Persons in the Merger—Interests of the Buyer Group” and “—Related-Party
Transactions—Share Exchange.”
The Buyer Group believes that the operating
environment has changed significantly since the Company’s initial public offering, and the Company faces a number of challenges
in the market place, including, among other things:
| · | there
is increasing competition in the market for economy hotel chains in China in which the
Company operates; |
| · | the continued
expansion of the Company’s hotel network in different geographic locations in China
requires significant capital expenditures as well as continuous and substantial investments
in the Company’s managerial, operational, technological and other resources; and |
| · | the recent
economic slowdown in China and expected sustained macroeconomic challenges place substantial
pressure on the Company’s revenue growth, revenue per available room and other
key operating and financial metrics. |
These changes have increased the uncertainty
and volatility inherent in the business models of companies similar to the Company. As a result, the Buyer Group is of the view
that there is potential for considerably greater short and medium-term volatility in the Company’s earnings. Responding
to current market challenges will require tolerance for volatility in the performance of the Company’s business and a willingness
to make business decisions focused on improving the Company’s long-term profitability. The Buyer Group believes that these
strategies would not be effectively implemented if the Company were to continue to be publicly traded in the United States. Following
the Merger, the Company’s management will have greater flexibility to focus on improving long-term profitability without
the pressures exerted by the U.S. public market’s valuation of the Company and the emphasis on short-term period-to-period
performance.
As a privately held company, the Company
will be relieved of many of the other expenses, burdens and constraints imposed on companies that are subject to the public reporting
requirements under the U.S. federal securities laws, including the Exchange Act and the Sarbanes-Oxley Act of 2002. The need for
the management of the Company to be responsive to Unaffiliated Security Holders concerns and to engage in an ongoing dialogue
with Unaffiliated Security Holders can distract management’s time and attention from the effective operation and improvement
of the business.
The Buyer Group decided to undertake the
going-private transaction at this time because it wants to take advantage of the benefits of the Company being a privately held
company, as described above. In light of the Buyer Group’s evaluation of the competitive landscape and the challenges faced
by the Company as described above, including the pressure on the Company’s operating and financial performance as a result
of the recent economic slowdown in China, the Buyer Group determined that a going-private transaction at this time would enable
the Company to respond to these challenges more effectively and have greater flexibility to implement the Company’s strategies
to focus on long-term performance. In the course of considering the going-private transaction, the Buyer Group did not consider
alternative transaction structures.
The Company
The Company’s purpose for engaging
in the Merger is to enable its shareholders to receive US$17.90 per Share and its ADS holders to receive US$35.80 per ADS, in
cash, without interest and net of any applicable withholding taxes, which represents an 18.7% premium over the closing price of
US$30.17 per ADS as quoted by NASDAQ on June 10, 2015, and a premium of 29.4% and 36.6%, respectively, over the 30 and 60 trading
day volume-weighted average price as quoted by NASDAQ prior to June 10, 2015, the last trading day prior to our announcement on
June 11, 2015 that we had received a non-binding “going private” proposal from the Proposal Parties. The Company believes
its long-term objectives can best be pursued as a private company. The Company has determined to undertake the Merger at this
time based on the analyses, determinations and conclusions of the Special Committee and the Board described in detail under the
caption “—Reasons for the Merger and Recommendation of the Special Committee and the Board.”
Effects of the Merger on the Company
Private Ownership
ADSs representing Shares are currently
listed on NASDAQ under the symbol “HMIN.” It is expected that, following the consummation of the Merger, the Company
will cease to be a publicly traded company and will instead become a private company beneficially owned by Holdco and the Rollover
Shareholders. Following the completion of the Merger, ADSs will cease to be listed on any securities exchange or quotation system,
including NASDAQ, and price quotations with respect to sales of the ADSs in the public market will no longer be available. In
addition, registration of the ADSs and the underlying Shares under the Exchange Act may be terminated upon the Company’s
application to the SEC if the Shares are not listed on a national securities exchange and there are fewer than 300 record holders
of Shares. Ninety days after the filing of Form 15 in connection with the completion of the Merger or such shorter period as may
be determined by the SEC, registration of the ADSs and the underlying Shares under the Exchange Act will be terminated and the
Company will no longer be required to file periodic reports with the SEC or otherwise be subject to the U.S. federal securities
laws, including the Sarbanes-Oxley Act of 2002, applicable to public companies. The Company estimates that the cost of complying
with United States federal securities laws, including the Sarbanes-Oxley Act of 2002, totaled approximately US$2.6 million and
US$1.6 million for the years ended December 31, 2013 and December 31, 2014, respectively. As a result of no longer being
required to make SEC filings, the Company will no longer incur such costs and expenses. After the completion of the Merger, the
Company’s shareholders will no longer enjoy the rights or protections that the U.S. federal securities laws provide, including
reporting obligations for directors, officers and principal securities holders of the Company. Furthermore, following the completion
of the Merger, the ADS program will terminate.
Upon completion of the Merger, each issued
and outstanding Share (other than the Rollover Shares, the Excluded Shares, and the Dissenting Shares) and ADS (other than ADSs
representing Rollover Shares or Excluded Shares), will be cancelled in exchange for the right to receive the Per Share Merger
Consideration and the Per ADS Merger Consideration (less cancellation fees of US$0.05 per ADS pursuant to the terms of the Deposit
Agreement), respectively, in cash, without interest and net of any applicable withholding taxes, in accordance with the terms
and conditions set forth in the Merger Agreement. At the Effective Time, (i) the Rollover Shares will be converted into and
become one validly issued, fully paid and non-assessable ordinary share, par value US$0.005 each, of the surviving company, (ii)
the Excluded Shares (including ADSs representing the Excluded Shares) will be cancelled for no consideration or distribution therefor,
and (iii) the Dissenting Shares will be cancelled and each holder thereof will be entitled to receive only the payment of
the fair value of such Dissenting Shares held by them in accordance with the Cayman Islands Companies Law. At the Effective Time,
each ordinary share of Merger Sub issued and outstanding immediately prior to the Effective Time will be converted into one fully
paid and non-assessable ordinary share of the surviving company. As a result, current shareholders and ADS holders of the Company,
other than Rollover Shareholders, will no longer have any equity interest in, or be shareholders or ADS holders of, the Company
upon completion of the Merger, and they will not have the opportunity to participate in the earnings and growth of the Company
nor the right to vote on corporate matters. Similarly, our current shareholders and ADS holders, other than Rollover Shareholders,
will not be exposed to the risk of loss in relation to their investment in the Company.
At the Effective Time, (i) each option
to purchase Shares granted under the Share Incentive Plan that is issued and outstanding immediately prior to the Effective Time
and shall have become vested on or prior to the Effective Time will be cancelled and converted into the right to receive, as soon
as practicable after the Effective Time, an amount equal to the product of (a) the total number of Shares issuable under
such option immediately prior to the Effective Time multiplied by (b) the excess of US$17.90 over the exercise price payable
per Share under such option, if any, in cash, without interest and net of any applicable withholding taxes, (ii) except as provided
under the arrangement with respect to options held by certain directors, officers and employees of the Company described below,
each option to purchase Shares granted under the Share Incentive Plan that is issued and outstanding immediately prior to the
Effective Time and shall not have become vested on or prior to the Effective Time will be cancelled and converted into the right
to receive a restricted cash award subject to the same vesting conditions and schedules applicable to such option, as soon as
practicable after the Effective Time, in an amount equal to the product of (a) the total number of Shares issuable under
such option immediately prior to the Effective Time multiplied by (b) the excess of US$17.90 over the exercise price payable
per Share under such option, if any, in cash, without interest and net of any applicable withholding taxes, and (iii) except as
provided under the arrangement with respect to restricted share units held by certain directors, officers and employees of the
Company described below, each restricted share unit awarded under the Share Incentive Plan immediately prior to the Effective
Time will be cancelled and converted into the right to receive a restricted cash award subject to the same vesting conditions
and schedules applicable to such restricted share unit, as soon as practicable after the Effective Time, in an amount equal to
the product of (a) US$17.90 and (b) the total number of Shares underlying such restricted share unit, without interest and
net of any applicable withholding taxes. In the case that the exercise price per Share of any option is not lower than US$17.90,
such option will be cancelled for no consideration.
The restricted cash awards which (i) would
vest within two (2) years after the Effective Time and are issued to the Selected Key Employees, (ii) would vest within two (2)
years after the Effective Time and are issued to the Buyer Group Directors, and (iii) are issued to the members of the Special
Committee, in each case, will be fully vested and payable when issued, and the surviving company will pay all amounts owed under
such restricted cash awards to the holders thereof as soon as practicable after closing of the Merger.
For the maximum amount of cash payments
to be received by our directors and executive officers in respect of their Shares (excluding the Shares held by the Rollover Shareholders),
options and restricted share units upon the completion of the Merger, see “—Treatment of Shares, Options and Restricted
Share Units Held by Directors and Executive Officers” beginning on page 66.
Memorandum and Articles of Association of the Surviving
Company; Directors and Officers of the Surviving Company
If the Merger is completed, the current
memorandum and articles of association of the Company will be replaced in their entirety by the amended and restated memorandum
and articles of association in the form attached to the Plan of Merger, which are substantially identical to the memorandum and
articles of association of Merger Sub, as in effect immediately prior
to the Effective Time (except that, at the Effective Time, (i)
Article I of the memorandum of association of the surviving company will be amended to read as follows: “The name of the
company is Homeinns Hotel Group.” and the articles of association
of the surviving company will be amended to
refer to the name of the surviving company as “Homeinns Hotel Group” and (ii) if necessary, references therein to
the authorized share capital of the surviving company will be amended to refer to the authorized capital of the surviving company
as approved in the Plan of Merger). In addition, the directors of Merger Sub immediately prior to the
Effective Time will become the directors of the surviving company and the officers of Merger
Sub immediately prior to the Effective Time will become the officers of the surviving company.
Primary Benefits and Detriments of the Merger
The
primary benefits of the Merger to the Company’s Unaffiliated Security Holders include, without
limitation, the following:
| · | the receipt
by such security holders of US$35.80 per ADS or US$17.90 per Share in cash, representing
a premium of 29.4% and 36.6%, respectively, to the volume-weighted average price of the
Company’s ADSs during the 30 and 60 trading days prior to June 10, 2015, one day
prior to the date that the Company announced that it had received a “going private”
proposal from the Proposal Parties. |
| · | the avoidance
of the risk associated with any possible decrease in our future revenues and free cash
flow, growth or value, and the risks related to our substantial leverage, following the
Merger. |
The primary detriments of the Merger to
the Company’s Unaffiliated Security Holders include, without limitation, the following:
| · | such
security holders will cease to have an interest in the Company and, therefore, will no
longer benefit from possible increases in the future revenues and free cash flow, growth
or value of the Company or payment of dividends on the Shares, if any; and |
| · | in general,
the receipt of cash pursuant to the Merger will be a taxable transaction for U.S. federal
income tax purposes and may also be a taxable transaction under other applicable tax
laws. As a result, a U.S. Holder (as defined under “Special Factors—Material
U.S. Federal Income Tax Consequences”) of the Shares or ADSs who receives cash
in exchange for all of such U.S. Holder’s Shares or ADSs in the Merger generally
will be required to recognize gain as a result of the Merger for U.S. federal income
tax purposes if the amount of cash received exceeds such U.S. Holder’s aggregate
adjusted tax basis in such Shares. Additional adverse consequences will also result if
the Company is treated as a passive foreign investment company for U.S. federal income
tax purposes. |
The primary benefits of the Merger to the
Buyer Group include, without limitation, the following:
| · | if the
Company successfully executes its business strategies, the value of the equity investment
of the Buyer Group in the Company could increase because of possible increases in future
revenues and free cash flow, increases in the underlying value of the Company or the
payment of dividends, if any, that will accrue to Holdco and to BTG Hotels and the Rollover
Shareholders, and the value of BTG Hotels’ shares listed on the Shanghai Stock
Exchange could also increase. In addition, if the proposed Share Exchange is successfully
completed, which is subject to the satisfaction of certain conditions and is expected
to close after completion of the Merger, as further described in this proxy statement
under “—Interests of Certain Persons in the Merger—Interests of the
Buyer Group” and “—Related-Party Transactions—Share Exchange,”
the value of the equity investment of BTG and the Rollover Shareholders (other than Poly
Victory) in BTG Hotels, which will beneficially own 100% of equity interest in the surviving
company, could also increase; |
| · | the Company
will have more flexibility to change its capital spending strategy, expand its hotel
network and deploy new services and/or change its pricing strategies to attract customers
without public market scrutiny or the pressure to meet quarterly forecasts set by analysts.
In contrast, as a publicly traded company, the Company currently faces public shareholders
and investment analyst pressure to make decisions that may produce better short term
results, but which may not over the long term lead to a maximization of its equity value; |
| · | the Company
will have more freedom to focus on long-term strategic planning in a highly competitive
business; |
| · | there
will be a reduction of the costs and administrative burden associated with operating
the Company as an independent publicly traded company, including the costs associated
with regulatory filings and compliance requirements. Such cost savings will benefit the
Buyer Group following the closing of the Merger, and will be recurring in nature if and
for so long as the Company remains private. In addition, if the proposed Share Exchange
is successfully completed, which is subject to the satisfaction of certain conditions
and is expected to close after completion of the Merger, such cost savings will benefit
BTG Hotels, which will beneficially own 100% of equity interest in the surviving company,
and ultimately benefit the shareholders of BTG Hotels, including BTG and the Rollover
Shareholders (other than Poly Victory). |
The primary detriments of the Merger to
the Buyer Group include the following:
| · | all of
the risk of any possible decrease in the Company’s revenues, free cash flow or
value following the Merger will be borne by the Buyer Group; |
| · | risks
associated with any legal or regulatory proceedings against the Company will be borne
by the Buyer Group; |
| · | the business
risks facing the Company will be borne by the Buyer Group; and |
| · | an equity
investment in the surviving company by the Buyer Group following the Merger will involve
substantial risk resulting from the limited liquidity of such an investment, and following
the Merger, there will be no trading market for the surviving company’s equity
securities. |
In addition, if the proposed Share Exchange
is successfully completed, which is subject to the satisfaction of certain conditions and is expected to close after completion
of the Merger, as further described in this proxy statement under “—Interests of Certain Persons in the Merger—Interests
of the Buyer Group” and “—Related-Party Transactions—Share Exchange,” the above risks will be borne
by BTG Hotels, which will hold 100% of equity interest in the surviving company, and will be ultimately borne by the shareholders
of BTG Hotels, including BTG and the Rollover Shareholders (other than Poly Victory).
The Company’s Net Book Value and Net Earnings
The table below sets out the direct or
indirect interest in the Company’s net book value and net earnings for Holdco and the Rollover Shareholders prior to and
immediately after the Merger, based on the historical net book value and net earnings of the Company as of and for the nine months
ended September 30, 2015.
| |
Ownership
Prior to the Merger | | |
Ownership
After the Merger(2) | |
| |
Net
Book Value | | |
Net
Earnings | | |
Net
Book Value | | |
Net
Earnings | |
Name | |
$’000 | | |
%(1) | | |
$’000 | | |
%(1) | | |
$’000 | | |
%(3) | | |
$’000 | | |
%(3) | |
BTG Hotels Group (HONGKONG) Holdings Co., Limited | |
| — | | |
| — | | |
| — | | |
| — | | |
| 551,669 | | |
| 66.14 | | |
| 18,741 | | |
| 66.14 | |
Poly Victory Investments Limited | |
| 125,931 | | |
| 15.10 | | |
| 4,278 | | |
| 15.10 | | |
| 123,694 | | |
| 14.83 | | |
| 4,202 | | |
| 14.83 | |
Ctrip Information Technology (Shanghai) Co., Ltd. | |
| 123,148 | | |
| 14.76 | | |
| 4,184 | | |
| 14.76 | | |
| 120,960 | | |
| 14.50 | | |
| 4,109 | | |
| 14.50 | |
Neil Nanpeng Shen | |
| 3,211 | | |
| 0.38 | | |
| 109 | | |
| 0.38 | | |
| 3,154 | | |
| 0.38 | | |
| 107 | | |
| 0.38 | |
Smart Master International Limited | |
| 29,578 | | |
| 3.55 | | |
| 1,005 | | |
| 3.55 | | |
| 29,052 | | |
| 3.48 | | |
| 987 | | |
| 3.48 | |
David Jian Sun | |
| 258 | | |
| 0.03 | | |
| 9 | | |
| 0.03 | | |
| 253 | | |
| 0.03 | | |
| 9 | | |
| 0.03 | |
Peace Unity Investments Limited | |
| 2,299 | | |
| 0.28 | | |
| 78 | | |
| 0.28 | | |
| 1,922 | | |
| 0.23 | | |
| 65 | | |
| 0.23 | |
Jason Xiangxin Zong | |
| 721 | | |
| 0.09 | | |
| 24 | | |
| 0.09 | | |
| 708 | | |
| 0.08 | | |
| 24 | | |
| 0.08 | |
Wise Kingdom Group Limited (4) | |
| 2,713 | | |
| 0.33 | | |
| 92 | | |
| 0.33 | | |
| 2,665 | | |
| 0.32 | | |
| 91 | | |
| 0.32 | |
| (1) | Ownership percentages are based on 97,554,374 Shares issued
and outstanding as of the date of this proxy statement (excluding, for purposes of this
calculation, Shares issuable to the Rollover Shareholders upon the exercise of options
of the Company). |
| (2) | Assuming the proposed Share Exchange among BTG Hotels,
BTG and the Rollover Shareholders (other than Poly Victory) is successfully completed,
which is subject to the satisfaction of certain conditions and expected to be completed
after the closing of the Merger, BTG Hotels will hold 100% of equity interest in the
surviving company, and BTG and the Rollover Shareholders (other than Poly Victory) will
hold equity interest in BTG Hotels as set forth below under “—Interests of
Certain Persons in the Merger—Interests of the Buyer Group.” |
| (3) | Ownership
percentages are based on 99,299,802 outstanding ordinary shares of the surviving company
immediately following the Effective Time, as contemplated under the Plan of Merger. |
| (4) | Wise Kingdom Group Limited is wholly owned and controlled
by Ms. Lau, the spouse of Mr. Liang. |
Alternatives to the Merger
The Board did not independently determine
to initiate a process for the sale of the Company. The Special Committee was formed on June 11, 2015, in response to the receipt
of the Proposal Letter from the Proposal Parties on the same day. The Special Committee determined that, in light of (i) the intention
of all members of the Buyer Group to work exclusively with each other in pursuing the Merger and not to sell their Shares or ADSs
to any third party, (ii) the fact that the Buyer Group collectively beneficially owns approximately 34.5% of the issued and outstanding
Shares (excluding, for purposes of this calculation, Shares issuable to the Rollover Shareholders upon the exercise of options
of the Company), and (iii) the fact that, since the Company’s receipt of the Proposal Letter from the Proposal Parties on
June 11, 2015, and despite the Special Committee’s conduct of a market check with the assistance of Credit Suisse, no party
has contacted the Company or the Special Committee expressing an interest in exploring an alternative transaction with the Company
(other than Company A which expressed an interest in acquiring the Company but subsequently withdrew its proposal), there was
no viable alternative transaction to the proposed sale of the Company to the Buyer Group. In addition, the Special Committee and
the Board considered, as an alternative to the Merger, remaining as a public company. However, based on the considerations set
forth in the section entitled “Special Factors—Reasons for the Merger and Recommendation of the Special Committee
and the Board” beginning on page 38, the Special Committee and the Board have concluded that it is more beneficial to the
Unaffiliated Security Holders to enter into the Merger Agreement and pursue the consummation of the Transactions, including the
Merger, and become a private company rather than to remain a public company.
The
Special Committee also took into account that, the Board may (i) upon the recommendation of the Special Committee, change, withhold,
withdraw, qualify or modify its recommendation of the Merger to the shareholders of the Company, if the Board determines, in its
good faith judgment upon the recommendation of the Special Committee, prior to obtaining the required shareholder approval and
upon advice by its independent legal counsel, that failure to change, withhold, withdraw, qualify or modify its recommendation
would be inconsistent with its fiduciary obligations to the Company and its shareholders under applicable law, and/or (ii) change,
withhold, withdraw, qualify or modify its recommendation of the Merger to the shareholders of the Company and/or authorize the
Company to terminate the Merger Agreement, approve or recommend a superior proposal to its shareholders, and enter into or execute
an alternative merger agreement, prior to obtaining the required shareholder approval, if (a) the Company receives an unsolicited,
bona fide written proposal or offer regarding a competing transaction, and (b) the Board determines, in its good faith judgment
upon the recommendation of the Special Committee (upon advice by its financial advisor and independent legal counsel) that such
competing transaction constitutes a superior proposal (as defined in the Merger Agreement) and failure to take such action with
respect to such superior proposal would be inconsistent with its fiduciary obligations to the Company and its shareholders under
applicable law, in each case, subject to conditions set forth in the Merger Agreement.
In this regard, the Special Committee recognized that it has flexibility under the Merger Agreement
to respond to an alternative transaction proposed by a third party that is or is reasonably likely to result in a superior proposal,
including the ability to provide information to and engage in discussions and negotiations with such party (and, if such proposal
is a superior proposal, change its recommendation of the Merger to the Company’s shareholders).
Plans for the Company After the Merger
Following the completion of the Merger,
the Buyer Group anticipates that the Company will continue to conduct its operations substantially as they are currently being
conducted, except that it will cease to be an independent publicly traded company and will instead be beneficially owned by Holdco
and the Rollover Shareholders.
Except as set forth in this proxy statement
and transactions already under consideration by the Company, the Buyer Group does not have any current plans, proposals or negotiations
that relate to or would result in any of the following:
| · | an extraordinary
corporate transaction, such as a merger, reorganization or liquidation, involving the
Company or any of its subsidiaries; |
| · | the sale
or transfer of a material amount of the assets of the Company or any of its subsidiaries;
or |
| · | any other
material changes in the Company’s business, including with respect to the Company’s
corporate structure or business. |
Subsequent to the completion of the Merger,
the surviving company’s management and board of directors will continuously evaluate and review the surviving company’s
business and operations and may propose or develop new plans and proposals, including any of the foregoing actions and any actions
to address the challenges referred to under the caption “Special Factors—Purposes of and Reasons for the Merger”
above, in each case, which they consider to be in the best interests of the surviving company and its shareholders. The Buyer
Group expressly reserves the right to make any changes it deems appropriate to the operation of the surviving company in light
of such evaluation and review as well as any future developments.
Effects on the Company if the Merger Is Not Completed
If the Merger Agreement, the Plan of Merger
and the Transactions, including the Merger, are not authorized and approved by the shareholders of the Company or if the Merger
is not completed for any other reason, the shareholders or ADS holders of the Company will not receive any payment for their Shares
or ADSs pursuant to the Merger Agreement, nor will the holders of any options or restricted share units receive any payment pursuant
to the Merger Agreement. In addition, the Company will remain a publicly traded company, the ADSs will continue to be listed and
traded on NASDAQ, provided that the Company continues to meet NASDAQ’s listing requirements, and the Company will remain
subject to SEC reporting obligations. Therefore, the Company’s shareholders and ADS holders will continue to be subject
to similar risks and opportunities as they currently are with respect to their ownership of the Shares and ADSs. Accordingly,
if the Merger is not completed, we cannot assure you as to the effect of these risks and opportunities on the future value of
the Shares or ADSs, including the risk that the market price of the ADSs may decline to the extent that the current market price
reflects a market assumption that the Merger will be completed. In addition, there is a possibility that the Rollover Shareholders,
BTG Hotels and BTG would proceed with the Share Exchange pursuant to the Share Exchange Agreement even if the Merger is not completed.
Under specified circumstances in which
the Merger Agreement is terminated, the Company may be required to pay Parent a termination fee in an amount equal to US$44,437,000,
or Parent may be required to pay the Company a termination fee in an amount in RMB equal to either US$88,873,000 or US$17,775,000,
in each case, as described under the caption “The Merger Agreement—Termination Fee” beginning on page 96.
If the Merger is not completed, the Board
will, from time to time, evaluate and review, among other things, the business, operations, dividend policy and capitalization
of the Company and make such changes as are deemed appropriate and continue to seek to identify strategic alternatives to enhance
shareholder value. If the Merger Agreement is not approved by the shareholders or if the Merger is not completed for any other
reason, we cannot assure you that any other transaction acceptable to the Company will be offered, or that the business, prospects
or results of operations of the Company will not be adversely impacted.
Financing of the Merger
The Company and Holdco estimate that
the total amount of funds necessary to complete the Merger is anticipated to be approximately US$1.2 billion. This
amount includes the cash to be paid to the Company’s shareholders and holders of ADSs (other than the Rollover Shareholders)
and holders of options and restricted share units in the Merger as well as the related costs and expenses in connection with the
Transactions, including the Merger. It does not include the value of the Rollover Shares, which will be converted into ordinary
shares of the surviving company, and the Excluded Shares, which will be cancelled for no consideration in the Merger.
The total amount of funds necessary to
consummate the Transactions, including the Merger, is expected to be provided through the debt financing commitment of US$1.2
billion as discussed below. As of the date of this proxy statement, there are no alternative financing arrangements or plans in
place to obtain the funds necessary for the consummation of the Transactions, including the Merger.
On December 6, 2015, Holdco received the
Debt Commitment Letter from the Lead Arranger, pursuant to which and subject to the conditions set forth therein, the Lead Arranger
committed to arrange and provide a senior secured term loan facility of US$1.2 billion in aggregate principal amount (the “Term
Facility”) for Holdco to complete the Merger (including payment of the merger consideration to the holders of Shares and
ADSs (other than the Rollover Shares or ADSs representing the Rollover Shares) and holders of options and restricted share units),
as well as payment of any fees and expenses incurred in connection with the Transactions, including the Merger.
The Debt Commitment Letter expires on the
earlier of (i) the end of a nine-month period starting from the date of the Debt Commitment Letter, (ii) the termination of the
Merger Agreement by Holdco in a signed writing in accordance with its terms (or Holdco’s written confirmation or public
announcement of such termination), (iii) the consummation of the Merger without the funding of the Term Facility and (iv) 11:59
p.m., New York City time, on the date that is 5 business days after the Termination Date. The Lead Arranger, together with any
other lenders permitted under the Term Facility, are collectively referred to as the “Lenders.”
The Lender’s commitments to provide
the debt financing to Holdco are subject to, among other things:
| · | since
the date of the Merger Agreement, there having been no Company Material Adverse Effect
(as defined under the caption “The Merger Agreement—Representations and Warranties”); |
| · | the Merger
having been consummated, or to be consummated substantially simultaneously with the initial
borrowings under the Term Facility, in all material respects in accordance with the terms
of the Merger Agreement, after giving effect to any modifications, amendments, consents
or waivers by Holdco thereto, other than those modifications, amendments, consents or
waivers that are materially adverse to the interests of the Lenders 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 merger consideration will not be deemed to be materially adverse to the Lenders
and (ii) any increase in the merger consideration shall not be deemed to be materially
adverse to the Lenders so long as such amount is paid for by the equity contribution
from BTG Hotels to Holdco; |
| · | the Lead
Arranger having received evidence that BTG Hotels directly owns 100% of the ownership
interest in Holdco; |
| · | the Lead
Arranger having received (a) audited consolidated balance sheets of the Company and its
consolidated subsidiaries as at the end of, and related statements of operations, changes
in shareholder’s equity and cash flows of the Company and its consolidated subsidiaries
for, the three most recently completed fiscal years ended at least four months prior
to the closing date of the Transactions , and (b) an unaudited consolidated
balance sheet of the Company and its consolidated subsidiaries as at the end of, and
related statements of operations, changes in shareholder’s equity and cash flows
of the Company and its consolidated subsidiaries, for each subsequent fiscal quarter
(other than the fourth fiscal quarter of any fiscal year) of the Company 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
of the Transactions, including the Merger (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; |
| · | all documents
and instruments required to create and perfect the Lead Arranger’s security interest
in certain collateral used to secure the obligations of Holdco in respect of the Term
Facility having been executed and delivered and, if applicable, be in proper form for
filing; |
| · | at least
two business days prior to the closing date of the Transactions, the Lead Arranger having
received all documentation and other information about Holdco, BTG Hotels and BTG, in
each case that will have been reasonably requested by the Lead Arranger in writing at
least ten business days prior to the closing date of the Transactions and that the Lead
Arranger reasonably determines is required by United States regulatory authorities under
applicable “know your customer” and anti-money laundering rules and regulations,
including without limitation the USA PATRIOT Act; |
| · | the closing
of the Term Facility having occurred on or before the expiration of the Debt Commitment
Letter; |
| · | (i) the
execution and delivery by Holdco and BTG Hotels of the applicable definitive documentation
for the Term Facility (including the shares pledge agreements covering certain collateral
used to secure the obligations of Holdco in respect of the Term Facility), in each case,
in accordance with the terms of the Debt Commitment Letter, (ii) the execution and delivery
by BTG of a keepwell and liquidity support agreement (the “Keepwell Agreement”)
with respect to Holdco’s obligations under the Term Facility and (iii) 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 Holdco, BTG Hotels and
BTG (in each case, to the extent applicable and other than with respect to any subsidiary
of the Company other than any “significant subsidiary” of the Company within
the meaning of Rule 405 under the Securities Act); |
| · | all fees
required to be paid on the closing date of the Transactions pursuant to the fee letter
executed by the parties to the Debt Commitment Letter simultaneously therewith and reasonable
out-of-pocket expenses required to be paid on the closing date of the Transactions pursuant
to the Debt Commitment Letter, to the extent invoiced at least three business days prior
to such closing date (except as otherwise reasonably agreed by Holdco), upon the initial
borrowings under the Term Facility, having been, or being substantially simultaneously,
paid (which amounts may be offset against the proceeds of the Term Facility); |
| · | the Lead
Arranger having received a customary borrowing notice; |
| · | the accuracy
of (i) certain specified representations and warranties applicable to BTG Hotels, BTG
and Holdco to be set forth in the definitive documentation for the Term Facility and
(ii) such specified representations and warranties by or with respect to the Company
and its subsidiaries in the Merger Agreement as are material to the interests of the
Lenders, but only to the extent that Holdco or Merger Sub have the right (taking into
account any applicable cure provisions) to terminate their respective obligations under
the Merger Agreement or decline to consummate the merger as a result of a breach of such
representations in the Merger Agreement (in each case, in accordance with the terms of
the Merger Agreement), in each case, in all material respects (except that any of the
representations in (i) above qualified by materiality will be accurate in all respects
and any of the representations in (ii) above will be accurate to the extent required
under the Merger Agreement); and |
| · | all Requisite
Regulatory Approvals (as defined under the caption “The Merger Agreement—
Agreement to Use Reasonable Best Efforts”) having been obtained, and the Lead Arranger
having received a copy of each such Requisite Regulatory Approval to the extent such
Requisite Regulatory Approval is granted in writing. |
The Term Facility will be borrowed in a
single drawing on the closing date of the Transactions. The Term Facility will mature on the date that is one year after the closing
date of the Transactions and the then outstanding aggregate principal amount will be payable on the maturity date.
The interest rate of the Term Facility
will be equal to the sum of the London interbank offered rate for U.S. dollar deposits for a three-month period equal to the applicable
interest period, adjusted for statutory reserve requirements for U.S. dollar liabilities, and a margin of 2.5% per annum.
The obligations of Holdco under the Term
Facility will be secured by a perfected first priority pledge of all the equity interests held by BTG Hotels directly or indirectly
in the Company (including the surviving company) in favor of the Lead Arranger as offshore collateral agent for the benefit of
the Lenders. The obligations of Holdco under the Term Facility will enjoy the benefit of the Keepwell Agreement to be delivered
by BTG at the closing of the Term Facility. The surviving company will be subject under the Term Facility to certain financial
covenants, including a maximum leverage ratio, a minimum interest coverage ratio and a minimum consolidated tangible net worth,
to be tested as of the end of each three-month period, beginning from December 31, 2015, and also certain other customary covenants.
The Term Facility will contain certain customary events of default.
The Lead Arranger’s commitments to
provide the debt financing are not conditioned upon a successful syndication of any of the Term Facility with other financial
institutions.
The Debt Commitment Letter and the commitments
thereunder will not be assignable by any party thereto without the prior written consent of each party thereto, such consent not
to be unreasonable withheld, conditioned or delayed.
Consortium Agreement
On December 6, 2015, the Proposal Parties
entered into the Consortium Agreement, pursuant to which the Proposal Parties 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)
cooperate and proceed in good faith to negotiate and (iii) cooperate in appointing legal, financial and other advisors, in each
case, to undertake a transaction to acquire the Company, which would result in a delisting of the Company from NASDAQ and deregistering
the Shares of the Company under the Exchange Act.
Support Agreement
Concurrently with the execution of the
Merger Agreement, BTG Hotels, Holdco and the Rollover Shareholders entered into a support agreement, dated December 6, 2015 (the
“Support Agreement”), pursuant to which each of the Rollover Shareholders has agreed (i) to vote any and all of their
Shares in favor of the authorization and approval of the Merger Agreement and the Transactions and to appoint 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.
Remedies and Limitations on Liability
The Company is entitled to an injunction
or injunctions to prevent breaches of the Merger Agreement by Parent or Merger Sub and to specifically enforce the terms and provisions
thereof against Parent and Merger Sub, which remedies are in addition to any other remedy to which the Company is entitled at
law or in equity, except that the Company will not be entitled to seek an injunction, specific performance or other equitable
relief to enforce Holdco’s and Merger Sub’s obligations under the Merger Agreement to consummate the Merger and effect
the closing of the Merger. In the event that Holdco or Merger Sub fails to consummate the closing of the Merger or otherwise breaches
the Merger Agreement, the Company's right to receive payment of a termination fee in RMB equal to $88,873,000 from Parent, the
expenses pursuant to Section 8.06(c) of the Merger Agreement and any amounts pursuant to Section 6.07(d) or Section 6.09(c) of
the Merger Agreement would be its sole and exclusive remedy against Parent, Holdco, Merger Sub and their respective affiliates.
Parent and Merger Sub are entitled to an
injunction or injunctions to prevent breaches of the Merger Agreement and to enforce specifically the terms and provisions thereof
against the Company, which remedies are in addition to any other remedy to which they are entitled at law or in equity.
While the Company, Parent and Merger Sub
may pursue both a grant of specific performance and payment of a termination fee, none of them will be permitted or entitled to
receive both a grant of specific performance that results in the completion of the Merger and payment of a termination fee.
If any party brings any action to enforce specifically the performance of the terms and provisions of the Merger Agreement by
any party, the Termination Date will automatically be extended by (i) the amount of time during which such action is pending,
plus twenty business days or (ii) such other time period established by the court presiding over such action.
Interests of Certain Persons in the Merger
In considering the recommendation of the
Special Committee and the Board with respect to the Merger, you should be aware that each member of the Buyer Group has interests
in the transaction that are different from, and/or in addition to, the interests of the Company’s shareholders generally.
The Board and Special Committee were aware of such interests and considered them, among other matters, in reaching their decisions
to authorize and approve the Merger Agreement, the Plan of Merger and the Transactions, including the Merger, and recommend that
the Company’s shareholders vote in favor of authorizing and approving the Merger Agreement, the Plan of Merger and the Transactions,
including the Merger. Except as set forth under “Special Factors— Background of the Merger,” no director who
is not an employee of the Company has retained an unaffiliated representative to act solely on behalf of Unaffiliated Security
Holders for purposes of negotiating the terms of the Transactions and/or preparing a report concerning the fairness of the Transactions.
Interests of the Buyer Group
Following the completion of the Merger,
BTG Hotels will own 100% of the equity interests of Holdco, and assuming the proposed Share Exchange among BTG Hotels, BTG and
the Rollover Shareholders (other than Poly Victory) will not have been consummated as of the completion of the Merger, Holdco
and the Rollover Shareholders will collectively own 100% of the equity interests of the surviving company immediately following
the completion of the Merger as set forth in the table below. Because the Buyer Group will have equity interests in the surviving
company, it will enjoy the benefits from any future earnings and growth of the Company after the Merger which, if the Company
is successfully managed, could exceed the value of their investments in the Company, including the amount paid by BTG Hotels and
Holdco as merger consideration for the Company’s Shares that are not Rollover Shares or Excluded Shares. These continuing
shareholders will also bear the corresponding risks of any possible decreases in the future earnings, growth or value of the Company,
and they will have no certainty of any future opportunity to sell their shares in the Company at an attractive price, or that
any dividends paid by the Company will be sufficient to recover their investment. The Merger may also provide additional means
to enhance shareholder value for the Buyer Group, including improved profitability due to the elimination of the expenses associated
with public company reporting and compliance; increased flexibility and responsiveness in management of the business to achieve
growth and respond to competition without the restrictions of short-term earnings comparisons; and additional means for making
liquidity available to the Buyer Group, such as through dividends or other distributions.
Holdco and the Rollover Shareholders will,
immediately following the completion of the Merger, hold the following equity interests in the surviving company (assuming the
proposed Share Exchange will not have been consummated as of completion of the Merger):
Name | |
Percentage of equity
of the surviving company(1) | |
BTG Hotels Group (HONGKONG) Holdings
Co., Limited | |
| 66.14 | % |
Poly Victory Investments Limited | |
| 14.83 | % |
Ctrip Information Technology (Shanghai) Co., Ltd. | |
| 14.50 | % |
Neil Nanpeng Shen | |
| 0.38 | % |
Smart Master International Limited | |
| 3.48 | % |
David Jian Sun | |
| 0.03 | % |
Peace Unity Investments Limited | |
| 0.23 | % |
Jason Xiangxin Zong | |
| 0.08 | % |
Wise Kingdom Group Limited(2) | |
| 0.32 | % |
Total | |
| 100.00 | % |
| (1) | Ownership percentages are based on 99,299,802 outstanding
ordinary shares of the surviving company immediately following the Effective Time, as
contemplated under the Plan of Merger. |
| (2) | Wise Kingdom Group Limited is wholly owned and controlled
by Ms. Lau, the spouse of Mr. Liang. |
The following diagrams illustrate the ownership
structure of the Company prior to and immediately following completion of the Merger (assuming that the proposed Share Exchange
will not have been consummated as of completion of the Merger):
Prior to the completion of the Merger
Immediately following completion
of the Merger
| (1) | For the beneficial ownership of Shares by each Rollover
Shareholder as of the date of the proxy statement, please refer to “Security Ownership
of Certain Beneficial Owners and Management of the Company” beginning on page 105. |
| (2) | For the beneficial ownership of equity of the surviving
company by each Rollover Shareholder immediately following completion of the Merger,
please refer to the table on page 65 under “—Interests of Certain Persons
in the Merger—Interests of the Buyer Group.” |
If the proposed Share Exchange is successfully
completed, which is subject to the satisfaction of certain conditions and is expected to close after completion of the Merger,
BTG Hotels will beneficially own 100% of the equity interest in the surviving company, the Rollover Shareholders (other than Poly
Victory) will become shareholders of BTG Hotels, and BTG will decrease its ownership of the equity interests of BTG Hotels immediately
following the completion of the proposed Share Exchange as set forth in the table below.
| |
Percentage of equity
of BTG Hotels | |
Name | |
Immediately prior to
the Share Exchange | | |
Immediately following
the Share Exchange | |
Beijing Tourism Group Co., Ltd. | |
| 60.12 | % | |
| 51.92 | % |
Ctrip Information Technology (Shanghai) Co., Ltd. | |
| — | | |
| 21.93 | % |
Neil Nanpeng Shen | |
| — | | |
| 0.57 | % |
Smart Master International Limited | |
| — | | |
| 5.27 | % |
David Jian Sun | |
| — | | |
| 0.05 | % |
Peace Unity Investments Limited | |
| — | | |
| 0.35 | % |
Jason Xiangxin Zong | |
| — | | |
| 0.13 | % |
Wise Kingdom Group Limited (1) | |
| — | | |
| 0.48 | % |
Other shareholders of BTG Hotels | |
| 39.88 | % | |
| 19.33 | % |
Total | |
| 100.00 | % | |
| 100.00 | % |
| (1) | Wise Kingdom Group Limited is wholly owned and controlled
by Ms. Lau, the spouse of Mr. Liang. |
The following diagram illustrates the ownership
structure of the Company and BTG Hotels immediately following completion of both the Merger and the proposed Share Exchange (as
further described under “—Related-Party Transactions—Share Exchange” beginning on page 68):
| (1) | For the beneficial ownership of equity of BTG Hotels by
each Rollover Shareholder (other than Poly Victory) immediately following the Share Exchange,
please refer to the table on page 66 under “—Interests of Certain Persons
in the Merger—Interests of the Buyer Group” and the table on page 69 under
“—Related-Party Transactions—Share Exchange.” |
If the proposed Share Exchange is completed,
because of BTG Hotels’ beneficial ownership of 100% of the equity interest in the surviving company, the Rollover Shareholders
(other than Poly Victory) and BTG will enjoy benefits from any future earnings, growth and value of the Company after the Merger
and will also bear the corresponding risks of any possible decreases in the future earnings, growth or value of the Company. The
value to be received by the Rollover Shareholders in the Share Exchange is uncertain, particularly in light of the timing and
uncertainty of completion of the Share Exchange and the impact of the applicable 12 or 36 month lock-up period on the expected
value of the BTG Hotels shares. Depending on the future trading price of the BTG Hotels shares, the per Share value represented
by the BTG Hotels shares to be received in the Share Exchange by BTG and the Rollover Shareholders (other than Poly Victory) in
exchange for their beneficial ownership of the Rollover Shares may be higher than, lower than or equal to the Per Share Merger
Consideration.
Treatment of Shares, Options and Restricted Share Units
Held by Directors and Executive Officers
As of the date of this proxy statement,
the Company’s directors and executive officers, as a group held an aggregate
of 4,905,606 Shares (excluding Shares owned by Poly Victory and Ctrip Shanghai), outstanding options
to purchase 1,027,050 Shares and 161,850 restricted share units. Together, as of the date of this proxy statement, the
Shares held by such persons represent approximately 0.08% of the total Shares of the Company that are subject to purchase as part
of the Merger. The maximum total amount of all cash payments the Company's directors and executive officers may receive in respect
of their Shares, vested and unvested options and restricted share units if the Merger is consummated is approximately US$15,118,537.
At the Effective Time, (i) each option
to purchase Shares granted under the Share Incentive Plan that is issued and outstanding immediately prior to the Effective Time
and shall have become vested on or prior to the Effective Time will be cancelled and converted into the right to receive, as soon
as practicable after the Effective Time, an amount equal to the product of (a) the total number of Shares issuable under
such option immediately prior to the Effective Time multiplied by (b) the excess of US$17.90 over the exercise price payable
per Share under such option, if any, in cash, without interest and net of any applicable withholding taxes, (ii) except as provided
under the arrangement with respect to options held by certain directors, officers and employees of the Company described below,
each option to purchase Shares granted under the Share Incentive Plan that is issued and outstanding immediately prior to the
Effective Time and shall not have become vested on or prior to the Effective Time will be cancelled and converted into the right
to receive a restricted cash award subject to the same vesting conditions and schedules applicable to such option, as soon as
practicable after the Effective Time, in an amount equal to the product of (a) the total number of Shares issuable under
such option immediately prior to the Effective Time multiplied by (b) the excess of US$17.90 over the exercise price payable
per Share under such option, if any, in cash, without interest and net of any applicable withholding taxes, and (iii) except as
provided under the arrangement with respect to restricted share units held by certain directors, officers and employees of the
Company described below, each restricted share unit awarded under the Share Incentive Plan immediately prior to the Effective
Time will be cancelled and converted into the right to receive a restricted cash award subject to the same vesting conditions
and schedules applicable to such restricted share unit, as soon as practicable after the Effective Time, in an amount equal to
the product of (a) US$17.90 and (b) the total number of Shares underlying such restricted share unit, without interest and
net of any applicable withholding taxes. In the case that the exercise price per Share of any option is not lower than US$17.90,
such option will be cancelled for no consideration.
The restricted cash awards which (i) would
vest within two (2) years after the Effective Time and are issued to the Selected Key Employees, (ii) would vest within two (2)
years after the Effective Time and are issued to the Buyer Group Directors, and (iii) are issued to the members of the Special
Committee, in each case, will be fully vested and payable when issued, and the surviving company will pay all amounts owed under
such restricted cash awards to the holders thereof as soon as practicable after closing of the Merger.
At the Effective Time, the Share Incentive
Plan and all relevant award agreements applicable to the Share Incentive Plan will be terminated. In addition, each option, whether
or not vested, and restricted share unit that is outstanding and unexercised, at the Effective Time will be cancelled.
The table below sets forth, as of the
date of this proxy statement, for each of the Company’s directors and officers:
| · | the number
of Shares owned and the number of Shares (other than any Rollover Shares) owned; |
| · | the cash
payment that will be made in respect of the Shares (other than any Rollover Shares) at
the Effective Time; |
| · | the number
of Shares issuable under the outstanding options held by such person (including vested
and unvested options) and the exercise price payable per Share for the options; |
| · | the cash
payment that will be made in respect of the outstanding options held by such person following
the Effective Time (including restricted cash awards); |
| · | the number
of the outstanding restricted share units held by such person; |
| · | the cash
payment that will be made in respect of the outstanding restricted share units held by
such person following the Effective Time (including restricted cash awards); and |
| · | the total
cash payment that will be made in respect of the outstanding Shares (other than any Rollover
Shares), options to purchase Shares and restricted share units held by such person (including
restricted cash awards). |
| |
Shares | | |
Options
to Purchase Shares(1) | | |
Restricted
Share Units | | |
| |
Name of Directors and
Executive Officers | |
Shares
Beneficially
Owned (Excluding
Rollover Shares) | | |
Cash
Payment
Therefor (Excluding
Rollover
Shares)
(US$) | | |
Shares
Underlying | | |
Exercise
Price (US$) | | |
Cash
Payment
Therefor
(US$)(2) | | |
Shares
Underlying | | |
Cash
Payment
Therefor
(US$)(2) | | |
Total
Cash Payments
(US$)(2) | |
Yi Liu | |
| — | | |
| — | | |
| 16,500 | | |
| 12.39
– 14.64 | | |
| 60,090 | | |
| — | | |
| — | | |
| 60,090 | |
Neil Nanpeng Shen | |
| — | | |
| — | | |
| 26,000 | | |
| 11.19
– 14.95 | | |
| 131,330 | | |
| 16,120 | | |
| 288,548 | | |
| 419,878 | |
David Jian Sun | |
| 40,000 | | |
| 716,000 | | |
| 332,000 | | |
| 11.19
– 15.62 | | |
| 1,519,460 | | |
| 22,494 | | |
| 402,643 | | |
| 2,638,103 | |
May Wu | |
| 198,000 | | |
| 3,544,200 | | |
| 200,000 | | |
| 11.19
– 15.62 | | |
| 1,011,670 | | |
| 17,190 | | |
| 307,701 | | |
| 4,863,571 | |
Cathy Xiangrong Li | |
| 18,266 | | |
| 326,961 | | |
| 132,000 | | |
| 11.19
– 17.16 | | |
| 671,280 | | |
| 54,798 | | |
| 980,884 | | |
| 1,979,126 | |
Jason Xiangxin Zong | |
| — | | |
| — | | |
| 260,800 | | |
| 11.19
– 15.62 | | |
| 1,173,740 | | |
| 16,388 | | |
| 293,345 | | |
| 1,467,085 | |
Min Bao | |
| 5,500 | | |
| 98,450 | | |
| 4,500 | | |
| 12.39
– 14.95 | | |
| 20,543 | | |
| — | | |
| — | | |
| 118,993 | |
James Jianzhang Liang | |
| 4,500 | | |
| 80,550 | | |
| 13,000 | | |
| 11.19
– 14.95 | | |
| 65,665 | | |
| 8,246 | | |
| 147,603 | | |
| 293,818 | |
Kenneth Gaw | |
| 126,959 | | |
| 2,272,566 | | |
| 13,000 | | |
| 11.19
– 14.95 | | |
| 65,665 | | |
| 8,246 | | |
| 147,603 | | |
| 2,485,835 | |
Terry Yongmin Hu | |
| 13,126 | | |
| 234,955 | | |
| 16,250 | | |
| 11.19
– 14.95 | | |
| 82,081 | | |
| 10,122 | | |
| 181,184 | | |
| 498,220 | |
Arthur M. Wang | |
| 4,500 | | |
| 80,550 | | |
| 13,000 | | |
| 11.19
– 14.95 | | |
| 65,665 | | |
| 8,246 | | |
| 147,603 | | |
| 293,818 | |
All directors and executive
officers as a group | |
| 410,851 | | |
| 7,354,233 | | |
| 1,027,050 | | |
| 11.19
– 17.16 | | |
| 4,867,188 | | |
| 161,850 | | |
| 2,897,115 | | |
| 15,118,537 | |
| (1) | Exclude options that have an exercise price lower than the
Per Share Merger Consideration. |
| (2) | Includes restricted cash awards. |
Indemnification; Directors’ and Officers’ Insurance
Pursuant to the Merger Agreement, Parent
and Merger Sub have agreed that:
| · | The memorandum
and articles of association of the surviving company will contain provisions no less
favorable with respect to exculpation and indemnification than are set forth in the memorandum
and articles of association of the Company, which provisions will not be amended, repealed
or otherwise modified for a period of six years from the Effective Time in any manner
that would affect adversely the rights thereunder of individuals who, at or prior to
the Effective Time, were directors, officers, employees, fiduciaries or agents of the
Company, unless such modification is required by law. |
| · | The surviving
company will maintain the Company's directors and officers liability insurance for a
period of six years after the Effective Time on terms with respect to coverage no less
favorable than the Company's existing insurance; provided that the surviving company
will not be required to expend in any one year an amount in excess of 300% of the current
annual premium paid by the Company for such insurance. The Company may purchase a six-year
“tail” prepaid policy prior to the Effective Time on terms and conditions
no less advantageous to the indemnified parties than the existing directors' and officers'
liability insurance maintained by the Company. |
| · | From
and after the Effective Time, the surviving company will comply with all of the Company's
obligations and will cause its subsidiaries to comply with their respective obligations
to indemnify the current and former directors and officers of the Company or any subsidiaries
against liabilities arising out of or in connection with (a) the fact that such
party is or was a director or officer of the Company or such subsidiary, or (b) any
acts or omissions occurring before or at the Effective Time to the extent provided under
the Company and its subsidiaries' respective organizational and governing documents or
agreements effective on the date of the Merger Agreement and to the fullest extent permitted
by the Cayman Islands Companies Law or any other applicable law. |
| · | Each
director and officer of the Company has entered into an indemnification agreement with
the Company and, subject to certain exceptions, Parent, Holdco and Merger Sub will, jointly
and severally, indemnify and hold harmless the Company from any damages incurred by the
Company in connection with any claims against the Company or any of its officers and
directors resulting from Parent, Holdco and/or Merger Sub’s disclosure of Company-related
information. |
The Special Committee
On June 11, 2015, the Board established
a special committee of independent and disinterested directors to, among other things, consider the proposal from the Proposal
Parties and take any actions it deems appropriate to assess the fairness and viability of such proposal.
The Special
Committee consists of three independent and disinterested directors, Messrs. Kenneth Gaw, Terry Yongmin Hu and Arthur M. Wang.
None of the three directors are affiliated with the Buyer Group
or any member of the management of the Company, and none of the three
directors has any financial interest in the Merger that is different from that of the Unaffiliated Security Holders, other than
(i) the directors’ receipt of Board compensation in the ordinary course and the Special Committee members’ compensation
in connection with its evaluation of the Merger (none of which is contingent upon the completion of the Merger or the Special
Committee’s or Board’s recommendation of the Merger), (ii) the directors’ indemnification and liability
insurance rights under the Merger Agreement and (iii) the acceleration of the vesting
of restricted cash awards to be issued to the Special Committee members for the unvested options and restricted share units held
by them. The Board did not place any limitations on the authority of
the Special Committee regarding its investigation and evaluation of the Merger.
We compensate the members of the Special
Committee in exchange for their service in such capacity at a monthly rate of US$12,000 for each member of the Special Committee
(the payment of which is not contingent upon the completion of the Merger
or the Special Committee’s or Board’s recommendation of the Merger).
Position with the Surviving Company
The directors and executive officers of
Merger Sub immediately prior to the Effective Time will become the directors and executive officers, respectively, of the surviving
company, in each case, unless otherwise determined by Holdco prior to the Effective Time. It is anticipated that, after the consummation
of the Merger, the existing executive officers of the Company will hold positions with the surviving company that are substantially
similar to their current positions.
Related-Party Transactions
Share Exchange
On December 6, 2015, BTG Hotels, BTG and
the Rollover Shareholders (other than Poly Victory) entered into the Share Exchange Agreement in relation to the proposed Share
Exchange. On the terms and subject to the conditions of 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 names in the table below. Pursuant to the Share Exchange Agreement, the exchange
ratio in the Share Exchange is based on (i) the Per Share Merger Consideration of US$17.90 in the Merger and (ii) RMB15.69, representing
90% of the volume weighted average price of BTG Hotels shares over the 20 trading days prior to March 17, 2015, the date BTG Hotels
suspended the trading of its shares on the Shanghai Stock Exchange as permitted under applicable PRC regulations.
| |
Rollover Shares of the
Company | | |
BTG Hotels common shares to
be issued pursuant to the Share | |
Rollover Shareholder | |
Shares | | |
Represented by ADSs | | |
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 (2) | |
| — | | |
| 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. |
| (2) | Wise Kingdom Group Limited is wholly owned and controlled
by Ms. Lau, the spouse of Mr. Liang. |
The
consummation of the Share Exchange is subject to the satisfaction of various conditions set forth in the Share Exchange Agreement,
including receipt of requisite PRC regulatory approvals with respect to the Share Exchange, and is expected to occur after completion
of the Merger. The consummation of the Share Exchange 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.
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,
have also agreed to be subject to certain lock-up periods with respect to the newly issued BTG Hotels common shares (unless the
lock-up periods have been otherwise determined by any regulatory authority):
| · | BTG may
not transfer the newly issued BTG Hotels common shares until the end of 36 months following
the date of the closing of the Share Exchange, subject to the following exceptions: |
| o | BTG’s
lock-up period with respect to the newly issued BTG Hotels common shares will be extended
by six months, in the event that (i) during the six-month period following the closing
of the Share Exchange, the closing prices of BTG Hotels common shares are lower than
the RMB15.69 per BTG Hotels common share for 20 consecutive trading days, or (ii) the
closing price at the end of the six-month period following the closing of the Share Exchange
is lower than RMB15.69 per BTG Hotels common shares; and |
| o | In
the event that there is any investigation by any judicial authority or the China Securities
Regulatory Commission arising out of any false or misleading statement or material omission
in the disclosure relating to the Share Exchange, BTG may not transfer any of the BTG
Hotels shares held by it until the resolution of such investigation; |
| · | Ctrip
Shanghai may not transfer the newly issued BTG Hotels common shares until the end of
36 months following the date of the closing of the Share Exchange; and |
| · | the Rollover
Shareholders (other than Poly Victory and Ctrip Shanghai) may not transfer the newly
issued BTG Hotels common shares until the end of 12 months following the date of the
closing of the Share Exchange; provided that, in the event that such Rollover Shareholder
has not beneficially owned the Rollover Shares held by it for at least 12 months as of
the closing of the Share Exchange, the lock-up period for such Rollover Shareholder will
be extended to 36 months following the date of the closing of the Share Exchange. |
The value to be received by the Rollover
Shareholders in the Share Exchange is uncertain, particularly in light of the timing and uncertainty of completion of the Share
Exchange and the impact of the applicable 12 or 36 month lock-up period on the expected value of the BTG Hotels shares. Depending
on the future trading price of the BTG Hotels shares, the per Share value represented by the BTG Hotels shares to be received
in the Share Exchange by BTG and the Rollover Shareholders (other than Poly Victory) in exchange for their beneficial ownership
of the Rollover Shares may be higher than, lower than or equal to the Per Share Merger Consideration.
Exchangeable Bonds
On December 24, 2015, BTG issued exchangeable
bonds to certain institutional investors including qualified institutional funds and asset management plans in which certain members
of the Buyer Group and management of the Company have economic interests. The exchangeable bonds issued by BTG are exchangeable
into the common shares of BTG Hotels after certain period of time, and the aggregate subscription price of such exchangeable bonds
was approximately RMB343.4 million (US$52.9 million).
Transaction with Jian Guo Inns
Jian Guo Inns Beijing Ltd., or Jian Guo
Inns, is a subsidiary of BTG Hotels. From 2004 through the beginning of 2012, Jian Guo Inns was the lessor of three leased-and-operated
hotels in our hotel chain. One of the three property lease contracts was terminated from April 1, 2012 due to a change in the
property’s ownership. In 2013, 2014 and the first nine months of 2015, we paid RMB 1.8 million, RMB 1.8 million (US$0.3
million) and RMB 1.4 million (US$0.2 million), respectively, to Jian Guo Inns as rental payments.
Transactions with Ctrip
Two of Ctrip’s directors, Mr. Shen
and Mr. Liang, are also the Company’s directors. Some of our customers book our hotel rooms through Ctrip and we pay agency
fees to Ctrip for such bookings. The amounts incurred by us as agency fees in 2013, 2014 and the first nine months of 2015 were
RMB 38.7 million, RMB 38.1 million (US$6.1 million) and RMB 25.8 million (US$4.1 million), respectively.
See “Item 10. Additional Information—C.
Material Contracts” included in the Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2014,
incorporated by reference into this proxy statement, for a description of the registration rights agreement we have entered into
with Ctrip.
Other Related Party Transactions
For a description of the Company’s
related party transactions, please see “Item 7. Major Shareholders and Related Party Transactions” included in the
Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2014, incorporated by reference into this proxy
statement. Please see “Where You Can Find More Information” beginning on page 109 for a description of how to obtain
a copy of the Company’s Annual Report.
Except for the transactions discussed above
under this caption titled “Related Party Transactions” or the arrangements in connection with the merger discussed
elsewhere in this proxy statement, during the past two years (i) there were no negotiations, transactions or material contacts
between the Company and its affiliates, on the one hand, and any member of the Buyer Group, on the other hand, concerning any
merger, consolidation, acquisition, tender offer for or other acquisition of any class of the Company’s securities; election
of the Company’s directors or sale or other transfer of a material amount of assets of the Company; (ii) the Company and
its affiliates did not enter into any other transaction with an aggregate value exceeding 1% of the Company’s consolidated
revenues with any member of the Buyer Group, and (iii) none of the Company’s executive officers, directors or affiliates
that is a natural person entered into any transaction during the past two years with an aggregate value (in respect of such transaction
or series of similar transactions with that person) exceeding US$60,000 with any member of the Buyer Group.
Fees and Expenses
Fees and
expenses incurred or to be incurred by the Company and the Buyer Group in connection with the Merger are estimated at the date
of this proxy statement to be as follows:
Description | |
Amount (US$) | |
Financing fees and expenses and other professional
fees | |
| 30,800,000 | |
Legal fees and expenses | |
| 3,775,500 | |
Special Committee fees | |
| 400,000 | |
Miscellaneous (including accounting, filing fees,
printer, proxy solicitation and mailing costs) | |
| 2,273,500 | |
Total | |
| 37,249,000 |
These expenses (other than the ADS cancellation
fees and surrender fees) will not reduce the merger consideration to be received by the Company’s shareholders and ADS holders.
If the Merger is consummated, the party incurring any costs and expenses in connection with the Merger and the Merger Agreement
will pay such costs and expenses except as otherwise provided in the Merger Agreement and the Consortium Agreement.
Voting by the Buyer Group at the Extraordinary General Meeting
Pursuant to the Support Agreement, the
Rollover Shareholders have agreed to vote all of the Shares they beneficially own in favor of the authorization and approval of
the Merger Agreement, the Plan of Merger and the Transactions, including the Merger, at the extraordinary general meeting of the
Company. Pursuant to the Consortium Agreement, Mr. Liang has agreed to vote all of the Shares he beneficially owns in favor of
the Merger at the extraordinary general meeting of the Company. As of the date of this proxy statement, the Rollover Shareholders
and Mr. Liang beneficially own, in the aggregate, 33,666,185 Shares, which represent approximately 34.5% of the total issued and
outstanding Shares entitled to vote as of the date of this proxy statement (excluding, for purposes of this calculation, Shares
issuable to the Rollover Shareholders upon the exercise of options of the Company). Unless the Merger Agreement has been terminated
in accordance with its terms, Holdco will cause to be voted, at the extraordinary general meeting of the Company, all of the Shares
or ADSs, if any, over which Holdco, Merger Sub or Parent otherwise has, directly or indirectly, voting power through enforcement
of the Support Agreement (subject to the terms and conditions therein) in favor of the authorization and approval of the Merger
Agreement, the Plan of Merger and the Transactions, including the Merger.
Litigation Related to the Merger
The Company is not aware of any lawsuit
that challenges the Merger Agreement, the Plan of Merger or any of the Transactions, including the Merger.
Accounting Treatment of the Merger
The Merger is expected to be accounted
for, at historical cost, as a merger of entities under common control in accordance with Accounting Standards Codification 805-50,
“Business Combinations—Related Issues.”
Regulatory Matters
The Company does not believe that any material
federal or state regulatory approvals, filings or notices are required in connection with the Merger other than the Requisite
Regulatory Approvals, the approvals, filings or notices required under the federal securities laws, and the filing of the Plan
of Merger (and supporting documentation as specified in the Cayman Islands Companies Law) with the Cayman Registrar and in
the event the Merger becomes effective, a copy of the certificate of merger being given to the shareholders and creditors of the
Company and Merger Sub as at the time of the filing of the Plan of Merger.
As described under the caption “The
Merger Agreement—Agreement to Use Reasonable Best Efforts,” “Requisite Regulatory Approvals” include,
in each case, with respect to the Merger, (i) the overseas investment filing with the PRC National Development and Reform Commission,
(ii) the approval by the State-owned Assets Supervision and Administration Commission of the Beijing Municipal Government of the
PRC and (iii) the clearance by the PRC Ministry of Commerce under the PRC anti-monopoly law.
On December 28, 2015, BTG Hotels
received the approval by the State-Owned Assets Supervision and Administration Commission of the Beijing Municipal Government
of the PRC with respect to the Merger.
On January 25, 2016, BTG Hotels completed
the overseas investment filing with the PRC National Development and Reform Commission with respect to the Merger.
Dissenters’ Rights
Shareholders who dissent from the Merger
in accordance with Section 238 of the Cayman Islands Companies Law will have the right to receive payment of the fair value
of their Shares if the Merger is completed, but only if they deliver to the Company, before the vote to authorize and approve
the Merger is taken at the extraordinary general meeting, a written objection to the Merger and subsequently comply with all procedures
and requirements of Section 238 of the Cayman Islands Companies Law for the exercise of dissenters’ rights, which is
attached as Annex D to this proxy statement. The fair value of their Shares as determined under the Cayman Islands Companies Law
could be more than, the same as, or less than the merger consideration they would receive pursuant to the Merger Agreement if
they do not exercise dissenters’ rights with respect to their Shares. These procedures are complex and you should consult
your Cayman Islands legal counsel. If you do not fully and precisely satisfy the procedural requirements of the Cayman Islands
Companies Law, you will lose your dissenters’ rights.
Material U.S. Federal Income Tax Consequences
The following is a general discussion of
material U.S. federal income tax consequences to only U.S. Holders (as defined below) of the exchange of Shares for cash pursuant
to the Merger Agreement. For purposes of this discussion, except as otherwise noted, references to Shares include ownership interests
in Shares through ADSs. This discussion is based on the U.S. Internal Revenue Code of 1986, as amended (the “Code”),
final and temporary U.S. Treasury Regulations promulgated thereunder, administrative pronouncements, and judicial decisions as
of the date hereof, all of which are subject to change, possibly on a retroactive basis, and to differing interpretation, which
may result in tax consequences different from those described below. This discussion is not binding on the U.S. Internal Revenue
Service (the “IRS”), and the IRS or a court in the event of an IRS dispute may challenge any of the conclusions set
forth below. Any discussion of U.S. federal tax issues in this proxy statement is not intended or written to be relied upon, and
cannot be relied upon by investors, for the purpose of avoiding penalties that may be imposed under the Code.
This discussion does not address any U.S.
federal estate, gift, or other non-income tax, or any state, local, or non-U.S. tax consequences of the Merger. This discussion
is a summary for general information purposes only and does not consider all aspects of U.S. federal income taxation that may
be relevant to particular shareholders in light of their individual investment circumstances or to certain types of shareholders
subject to special tax rules, including (i) holders that are banks, financial institutions, or insurance companies; regulated
investment companies, mutual funds, or real estate investment trusts; brokers or dealers in securities or currencies or traders
in securities that elect to apply a mark-to-market accounting method; or tax-exempt organizations, (ii) holders that own
Shares as part of a straddle, hedge, constructive sale, conversion transaction, or other integrated investment, (iii) holders
that acquired Shares in connection with the exercise of employee share options or otherwise as compensation for services, (iv) holders
that have a “functional currency” other than the U.S. dollar, (v) retirement plans, individual retirement accounts,
or other tax-deferred accounts, (vi) U.S. expatriates, (vii) holders that are subject to alternative minimum tax, (viii) holders
that actually or constructively own 10% or more of our voting stock or (ix) partnerships or other entities classified as
partnerships for U.S. federal income tax purposes. This discussion assumes that Shares are held as capital assets, within the
meaning of Section 1221 of the Code, at all relevant times. This discussion applies only to U.S. Holders who completely terminate
their interest in the Company following the Merger, whether such interest is held directly or indirectly, including by application
of attribution rules for U.S. federal income tax purposes. Attribution rules may apply, e.g., if such U.S. Holder holds interests
in Holdco or the Company indirectly through an interest owned by a family member (subject to certain exceptions and elective procedures)
or a partnership or other related entity.
As used herein, a “U.S. Holder”
is any beneficial owner of Shares that is (i) an individual citizen or resident of the United States for U.S. federal income
tax purposes, (ii) a corporation (or other entity treated as a corporation for U.S. federal income tax purposes) created
or organized under the laws of the United States, any state thereof, or the District of Columbia, (iii) an estate the income
of which is subject to U.S. federal income taxation regardless of its source or (iv) a trust which (a) is subject to
the primary jurisdiction of a court within the United States and for which one or more U.S. persons have authority to control
all substantial decisions, or (b) has a valid election in effect under applicable U.S. Treasury Regulations to be treated
as a U.S. person for U.S. federal income tax purposes.
If a partnership (including any entity
classified as a partnership for U.S. federal income tax purposes) is a beneficial owner of Shares, the U.S. federal income tax
treatment of a partner in the partnership generally will depend on the status of the partner and the activities of the partnership.
Any partner of a partnership holding Shares is urged to consult its own tax advisor.
ALL HOLDERS OF SHARES SHOULD CONSULT
THEIR TAX ADVISORS REGARDING THE SPECIFIC TAX CONSEQUENCES OF THE MERGER IN LIGHT OF THEIR PARTICULAR SITUATIONS, INCLUDING
THE APPLICABILITY AND EFFECT OF U.S. FEDERAL, STATE, LOCAL, NON-U.S. AND OTHER LAWS.
Consequences of Participation in the Merger or an Exercise
of Dissenters’ Rights
The receipt of cash, either as consideration
in the Merger or as a result of a U.S. Holder exercising its Dissenters’ Rights (as described under the section entitled
“Dissenters’ Rights”), will be a taxable transaction for U.S. federal income tax purposes, and a U.S. Holder
who so exchanges Shares for cash will generally recognize gain or loss in an amount equal to the difference between (i) the
amount of cash received and (ii) such U.S. Holder’s adjusted tax basis in the Shares exchanged therefor. Subject to
the discussion under “Passive Foreign Investment Company” below, such recognized gain or loss will generally be capital
gain or loss, and will constitute long-term capital gain or loss if the U.S. Holder’s holding period for the Shares exchanged
is greater than one year at the Effective Time.
Long-term capital gains of non-corporate
U.S. Holders are currently subject to U.S. federal income tax at a reduced rate. The ability to use any capital loss to offset
other income or gain is subject to certain limitations under the Code. If a U.S. Holder acquired different blocks of Shares at
different times and different prices, such U.S. Holder must determine the adjusted tax basis and holding period separately with
respect to each such block of Shares.
Any gain or loss recognized by U.S. Holders
will generally be treated as U.S. source gain or loss for U.S. foreign tax credit purposes. However, in the event that we
are deemed to be a PRC “resident enterprise” under the PRC tax law and gain from the disposition of Shares is regarded
as gain sourced from the PRC and is subject to tax in the PRC (see “—Material PRC Income Tax Consequences”),
you may be eligible to elect to treat such gain as PRC source gain under the income tax treaty between the United States and the
PRC (the Agreement Between the Government of the United States of America and the Government of the People’s Republic of
China for the Avoidance of Double Taxation and the Prevention of Tax Evasion With Respect to Taxes on Income (the “Treaty”)).
If we are not eligible for the benefits of the Treaty or you fail to make the election to treat any gain as PRC source, then you
may not be able to use the foreign tax credit arising from any PRC tax imposed on the exchange of Shares pursuant to the Merger
Agreement unless such credit can be applied (subject to applicable limitations) against tax due on other income treated as derived
from foreign sources. U.S. Holders are urged to consult their tax advisors regarding the tax consequences if PRC tax is imposed
on gain on a disposition of the Shares, including the availability of the foreign tax credit under their particular circumstances.
Passive Foreign Investment Company
Based on the past composition of our income
and the valuation of our assets, including goodwill, we do not believe we were a passive foreign investment company or a “PFIC”
for the taxable year ended December 31, 2014 and we do not expect to be a PFIC for the taxable year ended December 31, 2015 or
the current taxable year ending December 31, 2016, although there can be no assurance in this regard as the application of the
PFIC rules is subject to uncertainty in several respects, and we must make a separate determination after the close of each taxable
year as to whether we were a PFIC for such years. We currently hold, and expect to continue to hold, a substantial amount of cash
and other passive assets, and, because the value of our assets is determined in part by reference to the market prices of our
ADSs and Shares, which has been subject to fluctuations and which is likely to continue to fluctuate over time, there can be no
assurance that we will not be classified as a PFIC for the taxable year ended December 31, 2015 or the current taxable year ending
December 31, 2016. Our PFIC status for the taxable year ended December 31, 2015 will not be determined until the final results
of our annual audit are available and our PFIC status for the current taxable year ending December 31, 2016 will not be determinable
until the close of the taxable year ending December 31, 2016.
In general, we will be classified as a
PFIC in any taxable year if either (a) the average quarterly value of our gross assets that produce passive income or are held
for the production of passive income is at least 50% of the average quarterly value of our total gross assets (the “asset
test”) or (b) at least 75% of our gross income for the taxable year is passive income (such as certain dividends, interest
or royalties). For this purpose, we will be treated as owning our proportionate share of the assets and earning our proportionate
share of the income in any other corporation in which we own, directly or indirectly, at least 25% (by value) of the stock. For
purposes of the asset test: (a) any cash and cash invested in short-term, interest bearing debt instruments or bank deposits that
are readily convertible into cash will generally count as producing passive income or held for the production of passive income,
and (b) the total value of our assets is calculated based on our market capitalization.
If we are a PFIC for the current taxable
year or have been a PFIC during any prior year in which a U.S. Holder held Shares and the U.S. Holder has not made a valid
mark-to-market election or qualified electing fund election, any gain recognized by a U.S. Holder on the disposition of a Share
generally (a) would be allocated ratably to each day over such U.S. Holder’s holding period for the Share, (b) the amount
allocated to the current year and any tax year prior to the first taxable year in which we were a PFIC would be taxed as ordinary
income in the current year, (c) the amount allocated to each other taxable year would be subject to tax at the highest applicable
marginal rate in effect for that year and(d) an interest charge at the rage for underpayments of taxes would be imposed on the
resulting tax allocated to such period.
If we were a PFIC in any year in which
a U.S. Holder held ADSs or Shares and certain conditions relating to the regular trading of the Company’s ADSs have been
met in the past, a U.S. Holder of ADSs or Shares may have been able to make a so-called “mark-to-market” election
with respect to their ADSs or Shares. If a U.S. Holder made this election in a timely fashion, then instead of the tax treatment
described in the preceding paragraph, any gain recognized by the U.S. Holder in the Merger would generally be treated as ordinary
income or ordinary loss (limited to the extent of the net amount of previously included income as a result of the mark-to-market
election, if any).
We did not and do not intend to provide
the information U.S. Holders would need to make a qualified electing fund election for the current taxable year, and as such the
qualified electing fund election has not been and will not be available to U.S. Holders.
If we are a PFIC for the current taxable
year or have been a PFIC during any prior year in which a U.S. Holder held Shares, a U.S. Holder generally would be required to
file IRS Form 8621 with respect to the disposition of Shares. The PFIC rules are complex, and each U.S. Holder should consult
its own tax advisors regarding the applicable consequences of the Merger to such U.S. Holder if we are a PFIC or have been a PFIC
during any prior year in which a U.S. Holder held Shares.
Information Reporting and Backup Withholding
A U.S. Holder may be subject, under certain
circumstances, to information reporting and backup withholding with respect to the amount of cash received in the Merger. Under
the backup withholding rules, a U.S. Holder may be subject to backup withholding unless the U.S. Holder is an exempt recipient
and, when required, demonstrates this fact or provides a taxpayer identification number, makes certain certifications on IRS Form
W-9, and otherwise complies with the applicable requirements. A U.S. Holder that does not provide its correct taxpayer identification
number may also be subject to penalties imposed by the IRS.
Backup withholding is not an additional
tax and any amounts withheld under the backup withholding rules may be refunded or credited against a U.S. Holder’s U.S.
federal income tax liability, if any, provided that the required procedures are followed. U.S. Holders should consult their tax
advisors as to their qualification for exemption from backup withholding and the procedure for obtaining such an exemption.
Certain U.S. Holders may be required to
report information with respect to their investment in our Shares not held through a custodial account with a U.S. financial institution
to the IRS. U.S. Holders should consult their tax advisors regarding their reporting obligation with respect to the disposition
of their Shares.
Medicare Tax
For taxable years beginning after December 31,
2012, a U.S. Holder that is an individual or estate, or a trust that does not fall into a special class of trusts that is exempt
from such tax, will be subject to a 3.8% tax on the lesser of (i) such holder’s “net investment income”
(or undistributed “net investment income” in the case of an estate or trust) for the relevant taxable year and (ii) the
excess of such holder’s modified adjusted gross income for the taxable year over a certain threshold (which in the case
of individuals will be between US$125,000 and US$250,000, depending on the individual’s circumstances). A U.S. Holder’s
net investment income will generally include gains from the sale or other disposition of capital assets. U.S. Holders that are
individuals, estates or trusts should consult their tax advisors regarding the effect, if any, of this tax on their ownership
and disposition of Shares.
Consequences to the Company
No gain or loss is expected to be recognized
by the Company.
Material PRC Income Tax Consequences
Under the PRC Enterprise Income Tax Law
(the “EIT Law”), which took effect on January 1, 2008, enterprises established outside of the PRC whose “de
facto management bodies” are located in the PRC are considered “resident enterprises,” and thus will generally
be subject to the enterprise income tax at the rate of 25% on their global income. On December 6, 2007, the State Council
adopted the Regulation on the Implementation of PRC Enterprise Income Tax Law, effective as of January 1, 2008, which defines
the “de facto management body” as an establishment that has substantial management and control over the business,
personnel, accounts and properties of an enterprise. The State Administration of Taxation issued the Notice Regarding the Determination
of Chinese-Controlled Offshore Incorporated Enterprises as PRC Tax Resident Enterprises on the Basis of De Facto Management Bodies
(“Circular 82”) on April 22, 2009. Circular 82 provides certain specific criteria for determining whether the
“de facto management body” of a PRC-controlled offshore incorporated enterprise is located in the PRC. Under the EIT
Law and its implementation regulations, the PRC income tax at the rate of 10% is applicable to any gain recognized on receipt
of consideration by a “non-resident enterprise” from transfer of its equity in a PRC resident enterprise, provided
that the “non-resident enterprise” does not have a de facto management body in the PRC and also (a) does
not have an establishment or place of business in the PRC or (b) has an establishment or place of business in the PRC, but
the relevant income is not effectively connected with the establishment or place of business, to the extent such gain is derived
from sources within the PRC. Under the Individual Income Tax Law, an individual who disposes a capital asset in the PRC
is subject to PRC individual income tax at the rate of 20%. Relief from these taxes may be sought under applicable Income Tax
Treaties with the PRC.
As there has not been a definitive determination
of the Company’s status by the PRC tax authorities, the Company cannot confirm whether it would be considered a PRC resident
enterprise under the EIT Law or whether the gain recognized on the receipt of consideration for Shares would otherwise be subject
to PRC tax to holders of such Shares that are not PRC tax residents.
In addition, under the Circular on Strengthening
the Administration of Enterprises Income Tax on Non-resident Enterprises’ Equity Transfer Income (“Circular 698”)
issued by the State Administration of Taxation, which became effective as of January 1, 2008, the Circular Concerning Various
Questions on the Administration of Enterprises Income Tax on Non-resident Enterprises or “Bulletin 24,” which was
issued by the State Administration of Taxation, which became effective as of April 1, 2011, and the Bulletin on Certain Issues
Relating to Indirect Transfer of Assets by Non-resident Enterprises (“Bulletin 7”) issued by the State Administration
of Taxation, which became effective on February 3, 2015, if any non–resident enterprise transfers equity of a resident enterprise,
the non–resident enterprise may be subject to a 10% PRC income tax on the gain from such equity transfer, unless the amount
of the equity interest to be transferred and the transfer price are determined pursuant to standard trading rules of a public
security market and not by the purchaser and the seller by mutual agreement prior to such transactions. According to Circular
698, Bulletin 24 and Bulletin 7, where a non-resident enterprise indirectly holds and transfers equity of a PRC resident enterprise
held through an offshore holding company, a list of factors set out by Bulletin 7 should be taken into consideration to assess
whether the transfer arrangement would be deemed as having a reasonable commercial purpose. Where non-resident enterprises indirectly
transfer PRC resident enterprises' equity and avoid obligations to pay enterprise income tax through arrangement without a reasonable
commercial purpose, PRC taxation authorities have the power to redefine and deem the transaction as a direct transfer of PRC resident
enterprises' equity and impose a 10% income tax on the gain from such offshore share transfer. Circular 698 or Bulletin 7 may
be determined by the PRC tax authorities to be applicable to the Merger where non-PRC resident corporate shareholders or ADS holders
were involved, if the Merger is determined by the PRC tax authorities to lack reasonable commercial purpose. As a result, if PRC
tax authorities were to invoke Circular 698 or Bulletin 7 and impose tax on the receipt of consideration for Shares or ADSs, then
any gain recognized on the receipt of consideration for such Shares or ADSs pursuant to the Merger by the Company's non-PRC-resident
shareholders could be treated as PRC-source income and thus be subject to PRC income tax at a rate of 10% (subject to applicable
treaty relief).
You should consult your own tax advisor
for a full understanding of the tax consequences of the Merger to you, including any PRC tax consequences.
Material Cayman Islands Tax Consequences
The Cayman Islands currently have no form
of income, corporate or capital gains tax and no estate duty, inheritance tax or gift tax. No taxes, fees or charges will payable
(either by direct assessment or withholding) to the government or other taxing authority in the Cayman Islands under the laws
of the Cayman Islands in respect of the Merger or the receipt of cash for Shares and ADSs under the terms of the Merger. This
is subject to the qualification that (i) Cayman Islands stamp duty may be payable if any original transaction documents are
brought into or executed or produced before a court in the Cayman Islands (for example, for enforcement), (ii) registration
fees will be payable to the Cayman Registrar to register the Plan of Merger and (iii) fees payable to the Cayman Islands
Government Gazette Office to publish the notice of the Merger in the Cayman Islands Government Gazette.
MARKET PRICE OF
THE COMPANY’S ADSs, DIVIDENDS AND OTHER MATTERS
Market Price of the ADSs
The following
table provides the high and low sales prices for ADSs, each representing two Shares, on NASDAQ under the symbol “HMIN”
for each quarter of 2013, 2014, 2015 and 2016:
| |
Sales Price Per ADS
(in US$) | |
| |
High | | |
Low | |
Quarterly: | |
| | | |
| | |
2013 | |
| | | |
| | |
First quarter | |
| 32.00 | | |
| 27.60 | |
Second quarter | |
| 30.82 | | |
| 23.93 | |
Third quarter | |
| 36.74 | | |
| 24.90 | |
Fourth quarter | |
| 44.17 | | |
| 33.00 | |
2014 | |
| | | |
| | |
First quarter | |
| 43.89 | | |
| 28.98 | |
Second quarter | |
| 34.83 | | |
| 26.55 | |
Third quarter | |
| 36.84 | | |
| 28.60 | |
Fourth quarter | |
| 32.10 | | |
| 26.25 | |
2015 | |
| | | |
| | |
First quarter | |
| 30.39 | | |
| 21.56 | |
Second quarter | |
| 33.25 | | |
| 23.38 | |
Third quarter | |
| 31.75 | | |
| 23.91 | |
Fourth quarter | |
| 34.78 | | |
| 27.73 | |
2016 | |
| | | |
| | |
First quarter (through February 22, 2016) | |
| 35.03 | | |
| 33.45 | |
On June 10, 2015, the last trading day
immediately prior to the Company’s announcement on June 11, 2015 that it had received a going-private proposal from the
Proposal Parties, the reported closing price of the ADSs on NASDAQ was US$30.17 per ADS. The Per ADS Merger Consideration of US$35.80
represents a premium of approximately 18.7% over the closing price of the ADS as quoted by NASDAQ on June 10, 2015, and a premium
of approximately 29.4% and 36.6% to the volume-weighted average trading price as quoted by NASDAQ during the 30 and 60 trading
days prior to, and including June 10, 2015, the last trading day prior to the Company’s announcement on June 11, 2015 that
it had received a going-private proposal, respectively. On February 22, 2016, the most recent practicable date before the printing
of this proxy statement, the high and low reported sales prices of ADSs were US$35.03 and US$34.48, respectively. You are urged to
obtain a current market price quotation for your Shares in connection with voting your Shares.
Dividend Policy
The Company neither declared nor paid any
dividends in the past two years and as of the date of this proxy statement, nor does the Company have any present plan to pay
any cash dividends on its Shares in the foreseeable future.
Under the terms of the Merger Agreement,
the Company is not permitted to pay any dividends or repurchase any Shares pending consummation of the Merger. In the event the
Merger Agreement is terminated for any reason and the Merger is not consummated, the payment of future dividends will be subject
to the discretion of the Board. Even if the Board decides to pay dividends, the form, frequency and amount will depend upon the
Company’s future operations and earnings, capital requirements and surplus, general financial condition, contractual restrictions
and other factors that the Board may deem relevant. If the Company pays any dividends, the ADS Depositary will distribute such
payments to the Company’s ADS holders to the same extent as holders of Shares, subject to the terms of the Deposit Agreement,
including the fees and expenses payable thereunder. Cash dividends on the Shares, if any, will be paid in U.S. dollars.
We are a holding company incorporated in
the Cayman Islands. We rely on dividends from our subsidiaries in the PRC. Current PRC regulations permit our subsidiaries to
pay dividends to us only out of their accumulated profits, if any, determined in accordance with PRC accounting standards and
regulations. In addition, each of our subsidiaries in the PRC is required to set aside a certain amount of its accumulated after-tax
profits each year, if any, to fund certain statutory reserves. These reserves may not be distributed as cash dividends. Further,
if our subsidiaries in the PRC incur debt on their own behalf, the instruments governing the debt may restrict their ability to
pay dividends or make other payments to us.
THE EXTRAORDINARY
GENERAL MEETING
We are furnishing this proxy statement
to you, as a holder of the Shares, as part of the solicitation of proxies by the Board for use at the extraordinary general meeting
described below.
Date, Time and Place of the Extraordinary General Meeting
The extraordinary general meeting will
be held on March 25, 2016, at 10:00 a.m. (local time) at No. 124 Caobao Road, Xuhui District, Shanghai 200235, People’s
Republic of China.
Proposals to be Considered at the Extraordinary General
Meeting
At the meeting, you will be asked to consider
and vote upon:
THAT the Merger Agreement, the Plan of Merger
required to be registered with the Registrar of Companies in the Cayman Islands in order to give effect to the Merger, and the
Transactions, including (i) the Merger and (ii) upon the Merger becoming effective, the amendment and restatement of the existing
memorandum and articles of association of the Company by their deletion in their entirety and the substitution in their place
of the new memorandum and articles of association in the form attached as Appendix II to the Plan of Merger, be authorized and
approved;
THAT each director or officer of the Company
be authorized to do all things necessary to give effect to the Merger Agreement, the Plan of Merger and the Transactions, including
the Merger; and
| · | if necessary,
as an ordinary resolution: |
THAT the extraordinary general meeting be
adjourned in order to allow the Company to solicit additional proxies in the event that there are insufficient proxies received
at the time of the extraordinary general meeting to pass the special resolutions to be proposed at the extraordinary general meeting.
At the Effective Time, all Shares will
be cancelled and cease to exist. If the Merger is completed, each issued and outstanding Share (other than the Rollover Shares,
the Excluded Shares and the Dissenting Shares) and ADS (other than ADSs representing the Rollover Shares or the Excluded Shares),
will be cancelled in exchange for the right to receive the Per Share Merger Consideration and the Per ADS Merger Consideration
(less cancellation fees of US$0.05 per ADS pursuant to the terms of the Deposit Agreement), respectively, in each case, in cash,
without interest and net of any applicable withholding taxes, in accordance with the terms and conditions set forth in the Merger
Agreement.
At the Effective Time, (i) the Rollover
Shares will be converted into and become one validly issued, fully paid and non-assessable ordinary share, par value US$0.005
each, of the surviving company, (ii) the Excluded Shares (including ADSs representing the Excluded Shares) will be cancelled for
no consideration or distribution therefor, and (iii) the Dissenting Shares will be cancelled and each holder thereof will
be entitled to receive only the payment of the fair value of such Dissenting Shares held by them in accordance with the Cayman
Islands Companies Law. At the Effective Time, each ordinary share of Merger Sub issued and outstanding immediately prior to the
Effective Time will be converted into one fully paid and non-assessable ordinary share of the surviving company.
In addition to the foregoing, at the Effective
Time,
| i. | each option to purchase Shares granted under the Share
Incentive Plan that is issued and outstanding immediately prior to the Effective Time
and shall have become vested on or prior to the Effective Time will be cancelled and
converted into the right to receive, as soon as practicable after the Effective Time,
an amount equal to the product of (a) the total number of Shares issuable under
such option immediately prior to the Effective Time multiplied by (b) the excess
of US$17.90 over the exercise price payable per Share under such option, if any, in cash,
without interest and net of any applicable withholding taxes; in the case that the exercise
price per Share of any option is not lower than US$17.90, such option will be cancelled
for no consideration; |
| ii. | except as provided under the arrangement with respect
to options held by certain directors, officers and employees of the Company described
below, each option to purchase Shares granted under the Share Incentive Plan that is
issued and outstanding immediately prior to the Effective Time and shall not have become
vested on or prior to the Effective Time will be cancelled and converted into the right
to receive a restricted cash award subject to the same vesting conditions and schedules
applicable to such option, as soon as practicable after the Effective Time, in an amount
equal to the product of (a) the total number of Shares issuable under such option
immediately prior to the Effective Time multiplied by (b) the excess of US$17.90
over the exercise price payable per Share under such option, if any, in cash, without
interest and net of any applicable withholding taxes; in the case that the exercise price
per Share of any option is not lower than US$17.90, such option will be cancelled for
no consideration; |
| iii. | except as provided under the arrangement with respect
to restricted share units held by certain directors, officers and employees of the Company
described below, each restricted share unit awarded under the Share Incentive Plan immediately
prior to the Effective Time will be cancelled and converted into the right to receive
a restricted cash award subject to the same vesting conditions and schedules applicable
to such restricted share unit, as soon as practicable after the Effective Time, in an
amount equal to the product of (a) US$17.90 and (b) the total number of Shares underlying
such restricted share unit, without interest and net of any applicable withholding taxes; |
| iv. | the restricted cash awards which (i) would vest within
two (2) years after the Effective Time and are issued to the Selected Key Employees,
(ii) would vest within two (2) years after the Effective Time and are issued to the Buyer
Group Directors, and (iii) are issued to the members of the Special Committee, in each
case, will be fully vested and payable when issued, and the surviving company will pay
all amounts owed under such restricted cash awards to the holders thereof as soon as
practicable after closing of the Merger.; and |
| v. | each ordinary share, par value US$0.0005 per share,
of Merger Sub issued and outstanding immediately prior to the Effective Time will be
converted into one validly issued, fully paid and non-assessable ordinary share, par
value US$0.005 per share, of the surviving company. |
The Board’s Recommendation
The Board, acting upon the unanimous recommendation
of the Special Committee and after each director duly disclosed his interests in the Transactions, including the Merger, as required
by the memorandum and articles of association of the Company as amended to date and the laws of the Cayman Islands, unanimously:
| · | determined
that the Merger Agreement, the Plan of Merger and the Transactions, including the Merger,
on the terms and subject to the conditions set forth in the Merger Agreement, are fair
to, and in the best interests of, the Company and its shareholders (other than the Rollover
Shareholders) and declared it advisable for the Company to enter into the Transactions,
including the Merger; |
| · | authorized
and approved the execution, delivery and performance of the Merger Agreement, the Plan
of Merger and the consummation of the Transactions, including the Merger; |
| · | directed
that the Merger Agreement, the Plan of Merger and the Transactions, including the Merger,
be submitted to the shareholders of the Company for authorization and approval; and |
| · | subject
to the terms of the Merger Agreement, resolved to recommend the approval of the Merger
Agreement, the Plan of Merger and the Transactions, including the Merger, to the shareholders
of the Company. |
Record Date; Shares and ADSs Entitled to Vote
You are entitled to attend and vote
at the extraordinary general meeting if you have Shares registered in your name at the close of business in the Cayman Islands
on the Share Record Date. If you own Shares at the close of business in the Cayman Islands on the Share Record Date, the deadline
for you to lodge your proxy card and vote is March 23, 2016 at 10:00 a.m. (Shanghai time).
If you own ADSs as of the close of business
in New York City on the ADS Record Date (and do not cancel such ADSs and become a registered holder of the Shares underlying such
ADSs, as explained below), you cannot vote directly nor are you able to attend the extraordinary general meeting, but you may
instruct the ADS Depositary (as the holder of the Shares underlying your ADSs) on how to vote the Shares underlying your ADSs.
The ADS Depositary must receive your instructions no later than 5:00 p.m. (New York City time) on March 21, 2016 in order to ensure
the Shares underlying your ADSs are properly voted at the extraordinary general meeting.
Each outstanding Share on the
Share Record Date entitles the holder to one vote on each matter submitted to the shareholders for authorization and approval
at the extraordinary general meeting and any adjournment thereof. We expect that, as of the Share Record Date, there will be
97,554,374 Shares entitled to be voted at the extraordinary general meeting. See “—Procedures for Voting”
below for additional information.
Quorum
A quorum of the Company’s shareholders
is necessary to have a valid shareholders’ meeting. The required quorum for the transaction of business at the extraordinary
general meeting is the presence, in person or by proxy or by corporate representative, of one shareholder holding at least one-third
of the issued and outstanding Shares that are entitled to vote on the Share Record Date. In the event that a quorum is not present
at the extraordinary general meeting, we currently expect that we will adjourn the extraordinary general meeting to solicit additional
proxies in favor of the authorization and approval of the Merger Agreement.
Vote Required
Under the Cayman Islands Companies Law
and the Merger Agreement, in order for the Merger to be completed, the Merger Agreement and the Plan of Merger must be approved
by (i) a special resolution (as defined in the Cayman Islands Companies Law), which requires an affirmative vote of shareholders
representing at least two-thirds of the Shares present and voting in person or by proxy as a single class at the extraordinary
general meeting of the Company’s shareholders, and (ii) the Majority of the Minority Vote Requirement which requires, so
long as the Shares (excluding the Shares held by the Rollover Shareholders) present and voting in person or by proxy at the extraordinary
general meeting of the Company’s shareholders exceed 50% of all of the issued and outstanding Shares of the Company as of
the close of business on the Share Record Date, the affirmative vote of holders of Shares representing more than 50% of the Shares
(excluding the Shares held by the Rollover Shareholders) present and voting in person or by proxy as a single class at such meeting.
If this vote is not obtained, the Merger will not be completed.
As of the date of this proxy statement,
there are 97,554,374 Shares issued and outstanding (including Shares represented by ADSs), all of which are entitled to vote on the proposals
at the extraordinary general meeting, subject to the procedures described below under “—Procedures for Voting.”
We expect that, as of the Share Record Date, there will be 97,554,374 Shares issued and outstanding (including Shares represented by
ADSs), all of which will be entitled to vote on the proposals at the extraordinary general meeting, subject to the procedures
described below under “—Procedures for Voting.”
As of the date of this proxy statement,
the Rollover Shareholders collectively beneficially own an aggregate of 33,661,685 Shares, which represents approximately 34.5%
of the total issued and outstanding Shares (excluding, for purposes of this calculation, Shares issuable to the Rollover Shareholders
upon the exercise of options of the Company). See “Security Ownership of Certain Beneficial Owners and Management of the
Company” beginning on page 105 for additional information. Pursuant to the terms of the Support Agreement, these Shares
will be voted in favor of the authorization and approval of the Merger Agreement, the Plan of Merger and the Transactions, including
the Merger, at the extraordinary general meeting. Assuming the Rollover Shareholders comply with their voting undertakings under
the Support Agreement, based on the number of Shares expected to be issued and outstanding and entitled to vote as of the close
of business in the Cayman Islands on the Share Record Date in order for the proposal to be authorized and approved:
| (a) | assuming all issued and outstanding Shares expected to
be issued and outstanding and entitled to vote at the meeting are present in person or
by proxy and voting at the meeting, at least 31,374,565 Shares other than the Shares held by
the Rollover Shareholders must be voted in favor of the special resolutions to be proposed
at the extraordinary general meeting, including the special resolution to approve the
Merger Agreement, the Plan of Merger and the Transactions, including the Merger; and |
| (b) | in order to satisfy the Majority of Minority Vote Requirement,
assuming all issued and outstanding Shares expected to be issued and outstanding and
entitled to vote at the meeting are present in person or by proxy and voting at the meeting,
at least 31,946,345 Shares held by the Company’s shareholders other than the Rollover
Shareholders must be voted in favor of the proposal to authorize and approve the Merger
Agreement, the Plan of Merger and the Transactions, including the Merger. |
Procedures for Voting
Shares
Only shareholders entered in the register
of members of the Company at the close of business in the Cayman Islands on the Share Record Date will receive the final proxy
statement and proxy card directly from the Company. Shareholders registered in the register of members of the Company as of the
Share Record Date or their proxy holders are entitled to vote and may participate in the extraordinary general meeting or any
adjournment thereof. Shareholders who have acquired Shares after the close of business on the Share Record Date may not attend
the extraordinary general meeting unless they receive a proxy from the person or entity who had sold them the Shares. Each Share
carries one vote.
Shareholders wanting to vote by proxy
should simply indicate on their proxy card how they want to vote, sign and date the proxy card, and mail the proxy card in the
return envelope as soon as possible but in any event so that it is received by the Company no later than 10:00 a.m. on March 23,
2016 (Shanghai time), the deadline to lodge the proxy card. Shareholders can also attend the extraordinary general meeting and
vote in person.
Shareholders who have questions or requests
for assistance in completing and submitting proxy cards or need additional copies of this proxy statement or the accompanying
proxy card should contact MacKenzie Partners, Inc., the Company’s proxy solicitor, toll-free at 1-800-322-2885 (or +1-212-929-5500
outside of the United States) (call collect) or via email at homeinns@mackenziepartners.com.
ADSs
Holders of ADSs as of the close of business
in New York City on the ADS Record Date will receive the final proxy statement and ADS voting instruction card either directly
from the ADS Depositary (in the case of registered holders of ADSs) or these materials will be forwarded to them by a third party
service provider (in the case of beneficial owners of ADSs who are not registered holders of ADSs). Holders of ADSs as of the
close of business on February 23, 2016 (New York City time) (who do not cancel such ADSs and become a registered holder of the
Shares underlying such ADSs, as explained in the following paragraph) cannot attend or vote at the extraordinary general meeting
directly, but may instruct the ADS Depositary how to vote the Shares underlying the ADSs by completing and signing an ADS voting
instruction card provided by the ADS Depositary and returning it in accordance with the instructions printed on the card. The
ADS Depositary must receive the ADS voting instruction card no later than 5:00 p.m. (New York City time) on March 21, 2016. The
ADS Depositary will endeavor, in so far as practicable, to vote or cause to be voted the Shares represented by ADSs in accordance
with your voting instructions. The ADS Depositary has advised us that, pursuant to Section 4.7 of the Deposit Agreement,
it will not vote or attempt to exercise the right to vote any Shares other than in accordance with signed voting instructions
from the relevant ADS holder and, accordingly, Shares represented by ADSs for which no timely voting instructions are received
by the ADS Depositary will not be voted. If you hold your ADSs in a brokerage, bank or other nominee account, you must rely on
the procedures of the broker, bank or other nominee through which you hold your ADSs if you wish to vote.
Holders of ADSs will not be able to
attend the extraordinary general meeting unless they cancel their ADSs and become holders of Shares prior to the close of business
in the Cayman Islands on the Share Record Date. ADS holders who wish to cancel their ADSs need to make arrangements to deliver
the ADSs (or to the extent ADSs are certificated, the ADRs) to the ADS Depositary for cancellation before 5:00 p.m. (New York
City time) on March 1, 2016 together with (a) delivery instructions for the corresponding Shares (name and address of person
who will be the registered holder of such Shares), (b) payment of ADS cancellation fees (US$0.05 for each ADS) to be cancelled
pursuant to the terms of the Deposit Agreement and any applicable taxes and (c) a certification that the ADS holder either
(i) held the ADSs as of the ADS Record Date and has not given, and will not give, voting instructions to the ADS Depositary
as to the ADSs being cancelled, or has given voting instructions to the ADS Depositary as to the ADSs being cancelled but undertakes
not to vote the corresponding Shares at the extraordinary general meeting or (ii) did not hold the ADSs as of the ADS Record
Date and undertakes not to vote the corresponding Shares at the extraordinary general meeting. If you hold your ADSs in a brokerage,
bank or other nominee account, please contact your broker, bank or other nominee to find out what actions you need to take to
instruct the broker, bank or other nominee to cancel the ADSs on your behalf. Upon cancellation of the ADSs, the ADS Depositary
will transfer registration of the Shares to the former ADS holder (or a person designated by the former ADS holder). If after
the registration of Shares in your name you wish to receive a certificate evidencing the Shares registered in your name, you will
need to request the Cayman Registrar of Shares, Maples Corporate Services Limited, to issue and mail a certificate to your attention.
If the Merger is not completed, the Company would continue to be a public company in the United States and ADSs would continue
to be listed on NASDAQ. Shares are not listed and cannot be traded on any stock exchange other than NASDAQ, and in such case only
in the form of ADSs. As a result, if you have cancelled your ADSs to attend the extraordinary general meeting and the Merger is
not completed and you wish to be able to sell your Shares on a stock exchange, you would need to deposit your Shares into the
Company’s ADS program for the issuance of the corresponding number of ADSs, subject to the terms and conditions of applicable
law and the Deposit Agreement, including, among other things, payment of relevant fees of the ADS Depositary for the issuance
of ADSs and applicable share transfer taxes (if any) and related charges pursuant to the Deposit Agreement.
Persons holding ADSs in a brokerage, bank
or other nominee account should consult with their broker, bank or other nominee to obtain directions on how to provide such broker,
bank or other nominee with instructions on how to vote their ADSs.
Proxy Holders for Registered Shareholders
Shareholders registered in the register
of members of the Company as of the Share Record Date who are unable to participate in the extraordinary general meeting may appoint
as a representative another shareholder, a third party or the Company as proxy holder by completing and returning the form of
proxy in accordance with the instructions printed thereon. With regard to the items listed on the agenda and without any explicit
instructions to the contrary, the Company as proxy holder will vote in favor of the resolutions proposed at the extraordinary
general meeting according to the recommendation of the Board. If new proposals (other than those on the agenda) are put forth
before the extraordinary general meeting, the Company as proxy holder will vote in accordance with the position of the Board.
Voting of Proxies and Failure to Vote
All Shares represented by valid proxies
will be voted at the extraordinary general meeting in the manner specified by the holder. If a shareholder returns a properly
signed proxy card but does not indicate how the shareholder wants to vote, Shares represented by that proxy card will be voted
FOR the proposal to authorize and approve the Merger Agreement, the Plan of Merger and the Transactions, including the Merger
and, upon the Merger becoming effective, the amendment and restatement of the memorandum and articles of association of the Company
(as the surviving company) in the form attached to the Plan of Merger, FOR the proposal to authorize each director or officer
of the Company to do all things necessary to give effect to the Merger Agreement, the Plan of Merger and the Transactions, including
the Merger, and FOR the proposal to adjourn the extraordinary general meeting in order to allow the Company to solicit additional
proxies in the event that there are insufficient proxies received to pass the special resolutions during the extraordinary general
meeting, unless the shareholder appoints a person other than the chairman of the meeting as proxy, in which case the Shares represented
by that proxy card will be voted (or not submitted for voting) as the proxy determines. If a shareholder fails to vote by proxy
or in person, it will be more difficult for the Company to obtain the necessary quorum to transact business at the extraordinary
general meeting and to obtain required votes described in “—Vote Required.”
Brokers, banks or other nominees who hold
Shares in “street name” for customers who are the beneficial owners of such Shares may not give a proxy to vote those
customers’ Shares in the absence of specific instructions from those customers. If proxies are properly dated, executed
and returned by holders of Shares and no specific instructions are given by such holders, such Shares will be voted “FOR”
the proposals and in the proxy holder’s discretion as to other matters that may properly come before the extraordinary general
meeting. Abstentions by holders of Shares are included in the determination of the number of Shares present and voting but are
not counted as votes for or against a proposal. If no proxy is given by such holders of Shares, broker non-votes will be counted
toward a quorum but will not be treated as voted on any proposals at the extraordinary general meeting.
If holders of ADSs do not timely deliver
specific voting instructions to the ADS Depositary, the ADS Depositary has advised the Company that it will not vote or attempt
to exercise the right to vote any Shares underlying such holder’s ADSs.
Brokers, banks and other nominees who hold
ADSs in “street name” for their customers do not have discretionary authority to provide the ADS Depositary with voting
instructions on how to vote the Shares underlying the ADSs with respect to the adoption of the Merger Agreement. Accordingly,
if banks, brokers or other nominees do not receive specific voting instructions from the beneficial owner of ADSs, they may not
provide the ADS Depositary with voting instructions on how to vote the Shares underlying the ADSs with respect to the adoption
of the Merger Agreement.
Revocability of Proxies
Registered holders of our Shares may revoke
their proxies in one of three ways:
| · | First,
a registered shareholder can revoke a proxy by written notice of revocation given to
the chairman of the extraordinary general meeting at least two hours before the extraordinary
general meeting commences. Any written notice revoking a proxy should also be sent to
Homeinns Hotel Group, No. 124 Caobao Road, Xuhui District, Shanghai 200235, People’s
Republic of China, Attention: Ethan Ruan. |
| · | Second,
a registered shareholder can complete, date and submit a new proxy card bearing a later
date than the proxy card sought to be revoked to the Company no later than 10:00 a.m.
(Shanghai time) on March 23, 2016, which is the deadline for shareholders to lodge proxy
cards. |
| · | Third,
a registered shareholder can attend the meeting and vote in person. Attendance, by itself,
will not revoke a proxy. It will only be revoked if the registered shareholder actually
votes at the extraordinary general meeting. |
If a shareholder holds Shares through a
broker, bank or other nominee and has instructed the broker, bank or other nominee to vote the shareholder’s Shares, the
shareholder must follow directions received from the broker, bank or other nominee to change those instructions.
Holders of our ADSs may revoke their
voting instructions by notification to the ADS Depositary in writing at any time prior to 5:00 p.m. (New York City time) on March
21, 2016. A holder of ADSs can do this in one of two ways:
| · | First,
a holder of ADSs can revoke its voting instruction by written notice of revocation timely
delivered to the ADS Depositary. |
| · | Second,
a holder of ADSs can complete, date and submit a new ADS voting instruction card to the
ADS Depositary bearing a later date than the ADS voting instruction card sought to be
revoked. |
If you hold your ADSs through a broker,
bank or other nominee and you have instructed your broker, bank or other nominee to give ADS voting instructions to the ADS Depositary,
you must follow the directions of your broker, bank or other nominee to change those instructions.
Rights of Shareholders Who Object to the Merger
Shareholders who continue to hold their
Shares in their own name until the completion of the Merger will have the right to exercise dissenters’ rights and receive
payment of the fair value of their Shares if the Merger is completed, but only if they deliver to the Company, before the vote
to authorize and approve the Merger is taken at the extraordinary general meeting of the Company, a written objection to the Merger
and subsequently comply with all procedures and requirements of Section 238 of the Cayman Islands Companies Law, which is
attached as Annex D to this proxy statement, for the exercise of dissenters’ rights. The fair value of your Shares as determined
under the Cayman Islands Companies Law could be more than, the same as, or less than the Merger consideration you would receive
pursuant to the Merger Agreement if you do not exercise dissenters’ rights with respect to your Shares.
ADS HOLDERS WILL NOT HAVE THE RIGHT
TO EXERCISE DISSENTERS’ RIGHTS AND RECEIVE PAYMENT OF THE FAIR VALUE OF THE SHARES UNDERLYING THEIR ADSs. THE ADS DEPOSITARY
WILL NOT ATTEMPT TO EXERCISE ANY DISSENTERS’ RIGHTS WITH RESPECT TO ANY OF THE SHARES THAT IT HOLDS, EVEN IF AN ADS HOLDER
REQUESTS THE ADS DEPOSITARY TO DO SO. ADS HOLDERS WISHING TO EXERCISE DISSENTERS’ RIGHTS MUST SURRENDER THEIR ADSs TO THE
ADS DEPOSITARY, PAY THE ADS DEPOSITARY’S FEES REQUIRED FOR THE CANCELLATION OF THEIR ADSs, PROVIDE INSTRUCTIONS FOR THE
REGISTRATION OF THE CORRESPONDING SHARES IN THE COMPANY’S REGISTER OF MEMBERS, AND CERTIFY THAT THEY HAVE NOT GIVEN, AND
WILL NOT GIVE, VOTING INSTRUCTIONS AS TO THEIR ADSs (OR, ALTERNATIVELY, THAT THEY WILL NOT VOTE THE CORRESPONDING SHARES) BEFORE
5:00 P.M. (NEW YORK CITY TIME) ON MARCH 1, 2016, AND BECOME REGISTERED HOLDERS OF SHARES BEFORE THE VOTE ON THE MERGER IS TAKEN
AT THE EXTRAORDINARY GENERAL MEETING. THEREAFTER, SUCH FORMER ADS HOLDERS MUST COMPLY WITH THE PROCEDURES AND REQUIREMENTS FOR
EXERCISING DISSENTERS’ RIGHTS WITH RESPECT TO THE SHARES UNDER SECTION 238 OF THE CAYMAN ISLANDS COMPANIES LAW. IF THE MERGER
IS NOT COMPLETED, THE COMPANY WOULD CONTINUE TO BE A PUBLIC COMPANY IN THE UNITED STATES AND ADSs WOULD CONTINUE TO BE LISTED
ON NASDAQ. SHARES ARE NOT LISTED AND CANNOT BE TRADED ON ANY STOCK EXCHANGE OTHER THAN NASDAQ, AND IN SUCH CASE ONLY IN THE FORM
OF ADSs. AS A RESULT, IF A FORMER ADS HOLDER HAS CANCELLED HIS, HER OR ITS ADSs TO EXERCISE DISSENTERS’ RIGHTS AND THE MERGER
IS NOT COMPLETED AND SUCH FORMER ADS HOLDER WISHES TO BE ABLE TO SELL HIS, HER OR ITS SHARES ON A STOCK EXCHANGE, SUCH FORMER
ADS HOLDER WOULD NEED TO DEPOSIT HIS, HER OR ITS SHARES INTO THE COMPANY’S ADS PROGRAM FOR THE ISSUANCE OF THE CORRESPONDING
NUMBER OF ADSs, SUBJECT TO THE TERMS AND CONDITIONS OF APPLICABLE LAW AND THE DEPOSIT AGREEMENT, INCLUDING, AMONG OTHER THINGS,
PAYMENT OF RELEVANT FEES OF THE ADS DEPOSITARY FOR THE ISSUANCE OF ADSs AND APPLICABLE SHARE TRANSFER TAXES (IF ANY) AND RELATED
CHARGES PURSUANT TO THE DEPOSIT AGREEMENT.
Whom to Call for Assistance
If you need assistance, including help
in changing or revoking your proxy, please contact MacKenzie Partners, Inc., which is acting as the Company’s proxy solicitor
in connection with the Merger, as follows:
105 Madison Avenue
New York, New York 10016
homeinns@mackenziepartners.com
Call Collect: 1-212-929-5500 (outside the
United States)
or
Toll-Free 1-800-322-2885
Solicitation of Proxies
We have engaged MacKenzie Partners, Inc.
to assist in the solicitation of proxies from brokerage, banks or other nominees and individual investors for the extraordinary
general meeting. We expect that fees for services provided by MacKenzie Partners, Inc. will be approximately US$40,000 plus certain
costs associated with telephone solicitations, if required, and reimbursement of out-of-pocket expenses. In addition, proxies
may be solicited by mail, in person, by telephone, by internet or by facsimile by certain of our officers, directors and employees.
These persons will receive no additional compensation for solicitation of proxies but may be reimbursed for reasonable out-of-pocket
expenses. We will reimburse banks, brokers, nominees, custodians and fiduciaries for their reasonable expenses in forwarding copies
of this proxy statement to the beneficial owners of our Shares and in obtaining voting instructions from those owners. We will
pay all expenses of filing, printing and mailing this proxy statement.
Other Business
We are not currently aware of any business
to be acted upon at the extraordinary general meeting other than the matters discussed in this proxy statement.
THE MERGER AGREEMENT
The following summary describes material
provisions of the Merger Agreement. This summary may not include all of the information about the Merger Agreement and the Plan
of Merger that is important to you. This summary is subject to, and qualified in its entirety by reference to, the Merger Agreement
and the Plan of Merger, which are attached as Annex A and Annex B, respectively, and incorporated by reference into this section
of this proxy statement. You are urged to read each of the Merger Agreement and the Plan of Merger carefully and in its entirety,
as they are the legal documents governing the Merger.
The summary of the Merger Agreement
below is included in this proxy statement only to provide you with information regarding the terms and conditions of the Merger
Agreement, and not to provide any other factual information regarding the Company, BTG Hotels, Merger Sub, Holdco or their respective
businesses. Accordingly, the representations and warranties and other provisions of the Merger Agreement should not be read alone,
but instead should be read only in conjunction with the information provided elsewhere in this proxy statement and in the documents
incorporated by reference into this proxy statement. See “Where You Can Find More Information” beginning on page 109.
Structure and Completion of the Merger
The Merger Agreement provides for the merger
of Merger Sub with and into the Company upon the terms, and subject to the conditions, of the Merger Agreement and the Plan of
Merger, with the Company continuing as the surviving company resulting from the Merger. If the Merger is completed, the Company
will cease to be an independent publicly traded company. The closing will occur on the third business day immediately after all
of the closing conditions have been satisfied or waived. At the closing, Merger Sub and the Company will execute the Plan of Merger
and register the Plan of Merger and other related documents with the Cayman Registrar. The Merger will become effective on the
date specified in the Plan of Merger.
We expect that the Merger will be completed
during the first half of 2016, after all conditions to the merger have been satisfied or waived. We cannot specify when, or assure
you that, all conditions to the Merger will be satisfied or waived; however, we intend to complete the Merger as promptly as practicable.
Memorandum and Articles of Association; Directors and Officers
of the Surviving Company
At
the Effective Time, the memorandum and articles of association in the form attached as Annex B to the Plan of Merger (which
is substantially in the form of the memorandum and articles of association of Merger Sub, as in effect immediately prior to the
Effective Time, except that, at the Effective Time, (i) Article I of the memorandum of association of the surviving company
will be amended to read as follows: “The name of the company is Homeinns Hotel Group.” and the
articles of association of the surviving company will be
amended to refer to the name of the surviving company as “Homeinns
Hotel Group” and (ii) if necessary, references therein to the authorized share capital of the surviving company will be
amended to refer to the authorized capital of the surviving company as approved in the Plan of Merger) will be the memorandum
and articles of association of the surviving company. The directors of Merger Sub immediately prior to the Effective Time will
become the directors of the surviving company and the officers of Merger Sub immediately prior to the Effective Time will become
the officers of the surviving company.
Merger Consideration
At the Effective Time, each Share issued
and outstanding immediately prior to the Effective Time, other than the Rollover Shares, Excluded Shares, and the Dissenting Shares,
will be cancelled in exchange for the right to receive the Per Share Merger Consideration in cash, without interest and net of
any applicable withholding taxes. Each outstanding ADS, other than any ADS that represents Rollover Shares or Excluded Shares,
will then represent the right to receive the Per ADS Merger Consideration in cash (less cancellation fees of US$0.05 per ADS pursuant
to the terms of the Deposit Agreement) without interest and net of any applicable withholding taxes.
None of the Rollover Shareholders shall
have the right to receive the Per Share Merger Consideration or Per ADS Merger Consideration in respect of the Rollover Shares,
and each Rollover Share issued and outstanding immediately prior to the Effective Time shall be converted into and become one
validly issued, fully paid and non-assessable ordinary share, par value US$0.005 each, of the surviving company. The Excluded
Shares and ADSs representing the Excluded Shares will be cancelled for no consideration. Each Dissenting Share will be entitled
to receive only the payment resulting from the procedures set forth in Section 238 of the Cayman Islands Companies Law. Please
see “Dissenter Rights” beginning on page 99 for additional information.
At the Effective Time, each outstanding
ordinary share, par value US$0.0005 per share, of Merger Sub will be converted into one fully paid and non-assessable ordinary
share, par value US$0.005 per share, of the surviving company.
Treatment of Share Options
At
the Effective Time, (i) each option to purchase Shares granted under the Share Incentive Plan that is issued and outstanding
immediately prior to the Effective Time and shall have become vested on or prior to the Effective Time will be cancelled and converted
into the right to receive, as soon as practicable after the Effective Time, an amount equal to the product of (a) the total
number of Shares issuable under such option immediately prior to the Effective Time multiplied by (b) the excess of US$17.90
over the exercise price payable per Share under such option, if any, in cash, without interest and net of any applicable withholding
taxes, and (ii) except as provided under the arrangement with respect to options held by certain directors, officers and employees
of the Company described below, each option to purchase Shares granted under the Share Incentive Plan that is issued and outstanding
immediately prior to the Effective Time and shall not have become vested on or prior to the Effective Time will be cancelled and
converted into the right to receive a restricted cash award subject to the same vesting conditions and schedules applicable to
such option, as soon as practicable after the Effective Time, in an amount equal to the product of (a) the total number of
Shares issuable under such option immediately prior to the Effective Time multiplied by (b) the excess of US$17.90 over the
exercise price payable per Share under such option, if any, in cash, without interest and net of any applicable withholding taxes.
In the case that the exercise price per Share of any option is not lower than US$17.90, such option will be cancelled for no consideration.
The restricted cash awards which (i) would
vest within two (2) years after the Effective Time and are issued to the Selected Key Employees, (ii) would vest within two (2)
years after the Effective Time and are issued to the Buyer Group Directors, and (iii) are issued to the members of the Special
Committee, in each case, will be fully vested and payable when issued, and the surviving company will pay all amounts owed under
such restricted cash awards to the holders thereof as soon as practicable after closing of the Merger.
At the Effective Time, the Share Incentive
Plan and all relevant award agreements applicable to the Share Incentive Plan will be terminated. In addition, each option, whether
or not vested, and restricted share unit that is outstanding and unexercised, at the Effective Time will be cancelled.
Treatment of Restricted Share Units
At
the Effective Time, except as provided under the arrangement with respect to restricted share units held by certain directors,
officers and employees of the Company described below, each restricted share unit awarded under the Share Incentive Plan immediately
prior to the Effective Time will be cancelled and converted into the right to receive a restricted cash award subject to the same
vesting conditions and schedules applicable to such restricted share unit, as soon as practicable after the Effective Time, in
an amount equal to the product of (a) US$17.90 and (b) the total number of Shares underlying such restricted share unit,
without interest and net of any applicable withholding taxes.
The restricted cash awards which (i) would
vest within two (2) years after the Effective Time and are issued to the Selected Key Employees, (ii) would vest within two (2)
years after the Effective Time and are issued to the Buyer Group Directors, and (iii) are issued to the members of the Special
Committee, in each case, will be fully vested and payable when issued, and the surviving company will pay all amounts owed under
such restricted cash awards to the holders thereof as soon as practicable after closing of the Merger.
Exchange Procedures
Prior to the Effective Time, Holdco will
deposit with the paying agent for the benefit of the holders of the Shares (other than Excluded Shares), ADSs and options or restricted
share units pursuant to the Merger Agreement in an amount sufficient to pay the merger consideration. As promptly as practicable
after the Effective Time, the paying agent will mail to each registered holder of Shares entitled to receive the Per Share Merger
Consideration (a) a form of letter of transmittal specifying how the delivery of the merger consideration to registered holders
of the Shares (other than Excluded Shares) will be effected and (b) instructions for effecting the surrender of any share
certificates in exchange for the applicable merger consideration. Upon surrender of a share certificate or a declaration of loss,
each registered holder of Shares will receive an amount equal to (a) the number of Shares multiplied by (b) the Per
Share Merger Consideration.
As
promptly as reasonably practicable after the Effective Time (but within five business days thereafter), the paying agent
will transmit to the ADS Depositary a cash amount equal to (a) the number of ADSs issued and outstanding (other than ADSs
representing the Rollover Shares or Excluded Shares), multiplied by (b) the Per ADS Merger Consideration. The ADS Depositary
will distribute the merger consideration for the ADSs (less cancellation fees of US$0.05 per ADS pursuant
to the terms of the Deposit Agreement) to ADS holders pro rata to their holdings of ADSs (other than ADSs representing the
Rollover Shares or Excluded Shares) immediately prior to the Effective Time, without interest and net of any applicable withholding
taxes, upon surrender by them of the ADSs. The surviving company will pay any applicable fees, charges and expenses of the ADS
Depositary and government charges due to or incurred by the ADS Depositary in connection with the distribution of the Per ADS
Merger Consideration, other than withholding taxes or ADS cancellation fees.
As promptly as practicable after the Effective
Time (but within five business days thereafter), the paying agent will transmit to the surviving company and/or one or more of
its subsidiaries a cash amount equal to the amounts payable pursuant to the Merger Agreement to former holders of options or restricted
share units.
Representations and Warranties
The Merger Agreement contains representations
and warranties made by the Company to Holdco and Merger Sub and representations and warranties made by Holdco and Merger Sub to
the Company, in each case, as of specific dates. The statements embodied in those representations and warranties were made for
purposes of the Merger Agreement and are subject to important qualifications and limitations agreed by the parties in connection
with negotiating the terms of the Merger Agreement (including those set forth in the disclosure schedules delivered by the Company
and Holdco and Merger Sub in connection therewith). In addition, some of those representations and warranties may be subject to
a contractual standard of materiality different from that generally applicable to shareholders, may have been made for the principal
purposes of establishing the circumstances in which a party to the Merger Agreement may have the right not to close the Merger
if the representations and warranties of the other party prove to be untrue due to a change in circumstance or otherwise and allocating
risk between the parties to the Merger Agreement rather than establishing matters as facts. Moreover, the representations and
warranties made by the Company were qualified by its public disclosure with the SEC prior to the date of the Merger Agreement
(subject to certain limitations).
The representations and warranties made
by the Company to Parent and Merger Sub include representations and warranties relating to, among other things:
| · | due
organization, valid existence and, where applicable, good standing of the Company and
each of its subsidiaries; authority of the Company and each of its subsidiaries to carry
on its businesses; |
| · | capitalization
of the Company, the absence of options, warrants, preemptive or other rights with respect
to securities of the Company and each of its subsidiaries, or any securities that give
their holders the right to vote with the Company's shareholders; |
| · | the
Company's corporate power and authority to execute and deliver, to perform its obligations
under and to consummate the Transactions under the Merger Agreement, and the enforceability
of the Merger Agreement against the Company; |
| · | the
declaration of advisability and recommendation to the shareholders of the Company of
the Merger Agreement and the Merger by the Special Committee and by the Board, and the
authorization and approval of the Merger Agreement, the Plan of Merger and the Transactions,
including the Merger, by the Board; |
| · | the
Requisite Company Vote; |
| · | the
receipt of opinion from Credit Suisse; |
| · | the
absence of violations of, or conflict with, the governing documents of the Company, laws
applicable to the Company and certain agreements of the Company as a result of the Company
entering into and performing under the Merger Agreement and consummating the Transactions;
|
| · | governmental
consents and approvals; |
| · | compliance
with applicable laws, licenses and permits (including in relation to anticorruption and
economic sanctions); |
| · | the
Company's SEC filings since January 1, 2012 and the financial statements included
therein; |
| · | absence
of undisclosed liabilities; |
| · | the
Company's disclosure controls and procedures and internal controls over financial reporting;
|
| · | compliance
with the applicable rules and regulations of NASDAQ; |
| · | the
absence of any “Company Material Adverse Effect” (as defined below)
on the Company or certain other changes or events since December 31, 2014;
|
| · | the
accuracy of information supplied by the Company that is disclosed in the reorganization
report of BTG Hotels that will be filed with the Shanghai Stock Exchange and in the proxy
statement; |
| · | the
absence of any legal proceedings and governmental orders against the Company; |
| · | labor
and employment matters (including share incentive plan of the Company and awards issued
pursuant to such plan); |
| · | absence
of secured creditors; |
| · | material
contracts and the absence of any default under, or breach or violation of, any material
contract; |
| · | interested
party transactions; |
| · | the
absence of a shareholder rights agreement and the inapplicability of any anti-takeover
law to the Merger; |
| · | the
absence of any undisclosed broker's or finder's fees; and |
| · | acknowledgement
by Parent and Merger Sub as to the absence of any other representations and warranties
by the Company, other than the representations and warranties made by the Company contained
in the Merger Agreement. |
Many of the representations and warranties
made by the Company are qualified as to “materiality” or “Company Material Adverse Effect.” For purposes
of the Merger Agreement, a “Company Material Adverse Effect” means any event, circumstance, change or effect that,
individually or in the aggregate with all other events, circumstances, changes and effects, that would, or would reasonably be
expected to, have a material adverse effect on the business, financial condition, assets, liabilities or results of operations
of the Company and the subsidiaries taken as a whole. However, none of the following items occurring, either alone or in combination,
constitute or will be taken into account in determining whether there has been or would be a Company Material Adverse Effect:
| · | changes
in financial, credit or securities or capital markets or in general economic, business,
regulatory, legislative or political conditions, including changes in interest rates
and foreign exchange rates, or in any of the industries in which the Company or
any of its subsidiaries operate, so long as such changes do not adversely affect the
Company and its subsidiaries, taken as a whole, in a materially disproportionate manner
relative to other similarly situated participants in the industries and markets in which
they operate; |
| · | effects
resulting from the public announcement of or the performance of the Merger Agreement,
the pendency or the consummation of the Transactions, or the identity of any of Holdco,
Merger Sub, BTG Hotels, Rollover Shareholders or their respective affiliates, including
the impact or effect thereof on the relationship of the Company or its subsidiaries with
any employees, customers, suppliers or partners; |
| · | natural
disaster or any outbreak or escalation of hostilities or war or any act of terrorism
or other force majeure events; |
| · | changes
in any applicable laws or applicable accounting regulations or principles (including
U.S. GAAP), or the interpretation or enforcement thereof, so long as such changes do
not adversely affect the Company and its subsidiaries, taken as a whole, in a materially
disproportionate manner relative to other similarly situated participants in the industries
and markets in which they operate; |
| · | any
change in the price or trading volume of the ADSs or any failure to meet any financial
projections, forecasts or forward-looking statements (except that facts or occurrences
giving rise to or contributing to such change or failure that are not otherwise excluded
from the definition of “Company Material Adverse Effect” may be taken into
account in determining whether there has been a “Company Material Adverse Effect”); |
| · | any
Action in respect of the Merger Agreement or the Transactions brought or commenced by
any current or former shareholder of the Company; or |
| · | actions
taken (or omitted to be taken) by the Company or its subsidiaries with the written
request or consent of Holdco or Merger Sub. |
The representations and warranties made
by Holdco and Merger Sub to the Company include representations and warranties relating to, among other things:
| · | their
due organization, valid existence and good standing; authority to carry on their businesses;
|
| · | capitalization
of Holdco and Merger Sub, ownership of the share capital of Merger Sub by Holdco and
ownership of the share capital of Holdco by Parent, Holdco and Merger Sub being formed
solely for the purposes of engaging in the Transactions, and the absence of secured creditors
of Merger Sub; |
| · | their
corporate power and authority to execute, deliver and perform their obligations under
and to consummate the Transactions, and the enforceability of the Merger Agreement against them;
|
| · | the
Requisite Parent Vote; |
| · | the
absence of violations of, or conflict with, the governing documents of Holdco or Merger
Sub, laws applicable to Holdco or Merger Sub and certain agreements of Holdco or Merger
Sub as a result of Holdco and Merger Sub entering into and performing under the Merger
Agreement and consummating the Transactions; |
| · | governmental
consents and approvals; |
| · | debt
financing; delivery of true, correct and complete copy of the debt commitment letter; |
| · | the
absence of any undisclosed broker's or finder's fees; |
| · | the
absence of any legal proceedings and governmental orders against Parent or Merger Sub;
|
| · | the
absence of any undisclosed agreements (i) between Holdco, Merger Sub, BTG Hotels, Rollover
Shareholders or any of their respective affiliates, on the one hand, and any management
or director of the Company, on the other hand, relating to the Transactions, (ii) pursuant
to which any shareholder of the Company would be entitled to receive consideration of
a different amount or nature than the merger consideration or (iii) pursuant to which
any shareholder of the Company has agreed to vote to approve the Merger Agreement, the
Plan of Merger or the Merger or has agreed to vote against any competing transaction
or superior proposal; |
| · | the
absence of any undisclosed agreements between or among Holdco, Merger Sub, BTG Hotels,
Rollover Shareholders or any of their respective affiliates; |
| · | the
absence of undisclosed Shares and other securities of, any options, warrants or other
rights to acquire the Shares and other securities of, or any other economic interest
in, the Company, beneficially owned by ownership of Shares by Holdco, Merger Sub or any
of the Rollover Shareholders; |
| · | delivery
of true, correct and complete copy of the Support Agreement; |
| · | solvency
of the surviving company at and immediately after the Effective Time; |
| · | non-reliance
by Parent and Merger Sub on the Company's estimates; |
| · | independent
investigation of the Company conducted by Holdco and Merger Sub; and |
| · | acknowledgement
by the Company as to the absence of any other representations and warranties by Holdco
or Merger Sub, other than the representations and warranties made by Holdco and Merger
Sub contained in the Merger Agreement |
Conduct of Business Prior to Closing
The Company has agreed that from the date
of the Merger Agreement until the Effective Time, (a) the businesses of the Company and its subsidiaries will only be conducted
in, and the Company and its subsidiaries will not take any action except in, a lawfully permitted manner in the ordinary course
of business and consistent with past practice, and (b) the Company shall use its commercially reasonable efforts to preserve
the assets and the business organization of the Company in all material respects, to keep available the services of the current
officers and key employees of the Company and its subsidiaries and to maintain in all material respects the current relationships
of the Company and its subsidiaries with existing key customers and other persons with which the Company has material business
relations as of the date of the Merger Agreement.
From the date of the Merger Agreement until
earlier of the Effective Time and the termination of the Merger Agreement, without the prior written consent of Holdco (which
will not be unreasonably withheld, conditioned or delayed), the Company will not and will not permit any of its subsidiaries to,
among other things:
| · | amend
its organizational documents; |
| · | issue,
sell, transfer, lease, sublease, license, pledge, dispose of, grant or encumber, or authorize
the issuance, sale, transfer, lease, sublease, license, pledge, disposition, grant or
encumbrance of, (i) with limited exceptions, any Shares of any class of shares of
the Company or any of its subsidiaries or (ii) any property or assets of the Company
or any of its subsidiaries with a value or purchase price in excess of US$3,000,000,
except in the ordinary course of business; |
| · | declare,
set aside, make or pay any dividend or other distribution, payable in cash, Shares, property
or otherwise, with respect to any of its Shares, other than dividends or other distributions
from any subsidiary of the Company to the Company or any of its other subsidiary consistent
with past practice; |
| · | with
limited exceptions, reclassify, combine, split, subdivide or redeem, or purchase or otherwise
acquire, directly or indirectly, any of its Shares, or any options, warrants, convertible
securities or other rights exchangeable into or convertible or exercisable for any of
its Shares; |
| · | effect
or commence any liquidation, dissolution, scheme of arrangement, merger, consolidation,
amalgamation, restructuring, reorganization or similar transaction involving the Company
or any of its subsidiaries, or create any new subsidiaries that is incorporated outside
the PRC; |
| · | acquire
(including by merger, consolidation, scheme of arrangement, amalgamation or acquisition
of stock or assets or any other business combination) any assets, securities or properties,
in aggregate, with a value or purchase price in excess of US$3,000,000 in any transaction
or related series of transactions, except in the ordinary course of business; |
| · | other
than expenditures necessary to maintain assets in good repair consistent with the past
practice or pursuant to the Company’s operating plan as of the date of the Merger
Agreement, authorize, or make any commitment with respect to, any single capital expenditure
which is in excess of US$3,000,000 or capital expenditures which are, in the aggregate,
in excess of certain specified amount; |
| · | incur
any indebtedness or issue any debt securities except for (i) the incurrence or guarantee
of indebtedness under any of the Company or its subsidiaries’ existing credit facilities
as in effect on the date of the Merger Agreement in an aggregate amount not to exceed
the maximum amount authorized under the contracts evidencing such indebtedness, and (ii)
the incurrence of new indebtedness in an aggregate amount not in excess of US$3,000,000; |
| · | except
as required by law or pursuant to any employee compensation and benefits plan of the
Company or any of its subsidiaries, (i) enter into any new employment or compensatory
agreements, or terminate any such agreements, with any director, officer, employee or
consultant of the Company or its subsidiaries other than the hiring or termination of
employees or consultants below the vice president level or its equivalent or with an
annual compensation of less than US$200,000, (ii) grant or provide any severance or termination
payments or benefits to any director or officer of the Company or its subsidiaries, (iii)
increase the compensation, bonus or pension, welfare, severance or other benefits of,
pay any bonus to, any director or officer of the Company or its subsidiaries except for
any increase made in accordance with past practice, (iv) make any new equity awards to
any director, officer or employee of the Company or its subsidiaries, (v) establish,
adopt, amend or terminate any employee compensation and benefits plan of the Company
or any of its subsidiaries or materially amend the terms of any outstanding share awards,
(vi) take any action to accelerate the vesting of any share awards, or (vii) forgive
any loans to directors, officers or employees of the Company or its subsidiaries; |
| · | issue
or grant any share awards to any person; |
| · | make
any material changes with respect to financial accounting principles, policies and procedures,
except as required by changes in statutory or regulatory accounting rules or U.S. GAAP
or regulatory requirements with respect thereto; |
| · | enter
into, amend, modify, consent to the termination of, or waive any material rights under,
any material contract that calls for annual aggregate payments of US$3,000,000 or more
which cannot be terminated without material surviving obligations or material penalty
upon notice of ninety (90) days or less; |
| · | except
as otherwise permitted, enter into any contract between the Company or any of its subsidiaries,
on the one hand, and any of its affiliates (other than the Company and its subsidiaries),
officers, directors or employees, on the other hand; |
| · | terminate
or cancel, let lapse, or amend or modify in any material respect, other than renewals
in the ordinary course of business, any material insurance policies maintained by the
Company which is not promptly replaced by a comparable amount of insurance coverage;
|
| · | except
as otherwise permitted, settle any action; |
| · | permit
any item of the Company’s intellectual property to lapse or to be abandoned, dedicated
or disclaimed, or fail to perform or make any applicable filings, recordings or other
similar actions or filings, or fail to pay all required fees and taxes required or advisable
to maintain and protect the Company’s interest in such intellectual property; |
| · | fail
to make in a timely manner any filings or registrations with the SEC required under the
Securities Act or the Exchange Act; |
| · | enter
into, or propose to enter into, any transaction involving any earn-out or similar payment
payable by the Company or any of its subsidiaries to any third party, other than payments
in connection with purchases of vehicles, plant, equipment, supplies or computers in
the ordinary course of business; |
| · | engage
in the conduct of any new line of business material to the Company and its subsidiaries,
taken as a whole; |
| · | make
or change any material tax election, materially amend any tax return (except as required
by applicable law), enter into any material closing agreement with respect to taxes,
surrender any right to claim a material tax refund, settle or finally resolve any material
taxes controversy or materially change any method of tax accounting (except as required
by applicable law); or |
| · | announce
an intention, enter into any formal or informal agreement or otherwise make a commitment,
to do any of the foregoing. |
Company Shareholders' Meeting
Promptly after the SEC confirms that it
has no further comments on the Schedule 13E-3, but in no event earlier than the later of (i) the date on which BTG Hotels’
shareholders’ approval has been obtained and (ii) the date on which the Requisite Regulatory Approvals have been obtained,
the Company will cause an extraordinary general meeting of its shareholders to be duly called and held. The Board will recommend
to the shareholders of the Company that they approve and authorize the Merger Agreement, the Plan of Merger and the Transactions,
including the Merger and, upon the Merger becoming effective, the amendment and restatement of the memorandum and articles of
association of the Company (as the surviving company) in the form attached to the Plan of Merger, and include its recommendation
in this proxy statement. The Company will use its reasonable best efforts to solicit proxies from its shareholders in relation
to the Company’s shareholders’ meeting. In the event that the Board changes, withholds, withdraws, qualifies or modifies,
or proposes to change, withhold, withdraw, qualify or modify, its recommendation to the shareholders of the Company, the Company
will nevertheless call, give notice of, convene and hold the extraordinary general meeting and solicit from its shareholders proxies,
unless the Merger Agreement is validly terminated.
The approval of the Merger Agreement, the
Plan of Merger and the Transactions, including the Merger and, upon the Merger becoming effective, the amendment and restatement
of the memorandum and articles of association of the Company (as the surviving company) in the form attached to the Plan of Merger,
is subject to the following affirmative shareholder votes (the “Requisite Company Vote”): (i) two-thirds of the outstanding
Shares present and voting at the Company’s shareholders meeting under Cayman Islands Companies Law; and (ii) the Majority
of the Minority Vote Requirement which requires, so long as the Shares (excluding the Shares held by the Rollover Shareholders)
present and voting at the Company’s shareholders meeting exceed 50% of all of the issued and outstanding Shares as of the
close of business on the Share Record Date, more than 50% of the Shares (excluding the Shares held by the Rollover Shareholders)
present and voting at such meeting.
Unless the Support Agreement has been terminated,
Holdco will, at the extraordinary general meeting of the Company, vote all of its Shares or ADSs (including any Shares or ADSs
over which Holdco, Merger Sub or BTG Hotels has voting power through enforcement of the Support Agreement) in favor of the authorization
and approval of the Merger Agreement, the Plan of Merger and the Transactions, including the Merger.
BTG Hotels Shareholders' Meeting
BTG Hotels will take all actions reasonably
necessary or advisable to duly convene and hold its shareholders meeting as soon as reasonably practicable following the receipt
of the approval by the State-owned Assets Supervision and Administration Commission of the Beijing Municipal Government with respect
to the consummation of the Transactions, the confirmation by the Shanghai Stock Exchange that it has no further comments on the
Reorganization Report, and, as required, circulation of documents to its shareholders of all necessary announcements, notices
and documents required in connection with its shareholders meeting. BTG Hotels will use its reasonable best efforts to solicit
from its shareholders proxies in relation to its shareholders meeting.
An affirmative vote of at least two-thirds
of the total outstanding shares of BTG Hotels present and voting in person or by proxy (excluding any shares of BTG Hotels held
directly or indirectly by BTG) (“Requisite Parent Vote”) in favor of the Merger is required for the consummation by
Holdco and Merger Sub of the Merger.
Acquisition Proposals
None of the Company, any of its subsidiaries
or any of their respective directors, officers or representatives will, directly or indirectly, (i) solicit, initiate or
knowingly encourage (including by way of furnishing nonpublic information in a matter designed to knowingly encourage), or take
any other action to knowingly facilitate, any inquiries or the making of any proposal or offer (including any proposal or offer
to shareholders of the Company) with respect to, or that would reasonably be expected to lead to, any competing transaction, (ii) enter
into, maintain or continue discussions or negotiations with, or provide any nonpublic information relating to the Company or the
Transactions to, any person or entity in furtherance of such inquiries or to obtain a proposal or offer for a competing transaction,
(iii) agree to approve, endorse or recommend any competing transaction, or enter into any letter of intent or contract or
commitment contemplating or otherwise relating to any competing transaction, or (iv) authorize or permit any of the officers,
directors or representatives of the Company or any of its subsidiaries acting directly or indirectly under the direction of the
Company or any of its subsidiaries, to take any action set forth in (i) through (iii) above (in each case, other than
to the extent expressly permitted pursuant to the provisions described below under “—No Change of Recommendation”).
The Company will cease and cause to be terminated all discussions with any third parties existing as of the date of the Merger
Agreement regarding a competing transaction.
Prior
to obtaining the required shareholder authorization and approval of the Company of the Merger Agreement, the Plan of Merger and
the Transactions, including the Merger, if the Company receives an unsolicited, written, bona fide proposal or offer regarding
a competing transaction from any person that did not result from a breach by the Company of its obligations set forth in the above
paragraph, the Company and its representatives may (a) contact and engage in discussions with such person in order to clarify
and understand the terms and conditions of the proposal or offer to the extent the Special Committee shall have determined in
good faith that such contact is necessary to determine whether such proposal constitutes or is reasonably expected to lead to
a superior proposal and (b) furnish information to, and enter into discussions with, such person if the Special Committee
has (i) determined in good faith (after consultation with its financial advisor and independent legal counsel) that such
proposal or offer constitutes or would reasonably be expected to result in a superior proposal, (ii) determined in good faith
(after consultation with independent legal counsel) that failure to furnish information or enter into discussions with such person
would be reasonably likely to violate its fiduciary obligations to the Company and its shareholders under applicable law and (iii) obtained
from such person an executed confidentiality agreement on terms no less favorable to the Company in the aggregate than those contained
in the confidentiality agreement between the Company and the Proposal Parties;
provided, that the Company will concurrently make available to Holdco any material information concerning the Company and
its subsidiaries that is provided to any such person and that was not previously made available to Holdco or
its representatives.
A competing transaction means (i) any merger,
consolidation, share exchange, business combination, scheme of arrangement, amalgamation, recapitalization, liquidation, dissolution
or other similar transaction involving the Company or any of its subsidiaries whose assets, individually or in the aggregate,
constitute 20% or more of the consolidated assets of the Company or to which 20% or more of the net revenue or net income of the
Company are attributable; (ii) any sale, lease, exchange, transfer or other disposition of assets or businesses that constitute
or represent 20% or more of the net revenue or net income or assets of the Company and its subsidiaries, taken as a whole; (iii)
any sale, exchange, transfer or other disposition of 20% or more of any class of equity securities of the Company; or (iv) any
tender offer or exchange offer that, if consummated, would result in any person beneficially owning 20% or more of any class of
equity securities of the Company.
A superior proposal means a written, bona fide
offer or proposal with respect to a competing transaction (but with each reference to “20% or more” in the paragraph
above replaced with “more than 50%”) on terms the Board determines, in its good faith judgment, upon the recommendation
of the Special Committee (after receiving the advice of its financial advisor and independent legal counsel) (i) would be
reasonably likely to be consummated in accordance with its terms (taking into account all of the terms and conditions, including
all legal, financial, regulatory and other aspects, of the offer and the Merger Agreement, including conditions to closing, financing,
regulatory approvals, identity of the offeror, breakup or termination fee and expense reimbursement provisions, expected timing
and risk and likelihood of consummation and other relevant events and circumstances), and (ii) if consummated, would result
in a more favorable transaction, from a financial point of view, to shareholders (other than the Rollover Shareholders) than the
Merger, after taking into account any amendments proposed by Holdco (as described below under “—No Change of
Recommendation”); provided, that none of the following shall be deemed a superior proposal: (x) any offer subject
to due diligence review, (y) any offer in which closing of the proposed transaction is conditioned upon receipt of financing.
No Change of Recommendation
The Board will not:
| · | change,
withhold, withdraw, qualify or modify or propose to change, withhold, withdraw, qualify
or modify, in each case, in a manner adverse to Holdco or Merger Sub, the recommendation
to the shareholders of the Company to vote in favor of the authorization and approval
of the Merger Agreement, the Plan of Merger and the Transactions, including the Merger,
or fail to include in this proxy statement the recommendation to the shareholders of
the Company to vote in favor of the authorization and approval of the Merger Agreement,
the Plan of Merger and the Transactions, including the Merger; |
| · | approve
or recommend, or publicly propose to approve or recommend to the shareholders of the
Company, an offer or proposal with respect to a competing transaction; |
| · | if
a tender offer or exchange offer for 20% or more of the outstanding share capital of
the Company that constitutes a competing transaction is commenced, fail to recommend
against acceptance of such tender offer or exchange offer by its shareholders within
ten business days after commencement; or |
| · | subject
to certain exceptions, approve or recommend, cause or permit the Company to enter into,
or submit to a vote by its shareholders, any letter of intent, memorandum of understanding,
agreement in principle, Merger Agreement, acquisition agreement or other similar document
or contract with respect to any competing transaction. |
However, the Board may (x) change, withhold,
withdraw, qualify or modify or propose to change, withhold, withdraw, qualify or modify its recommendation and/or (y) authorize
the Company to terminate the Merger Agreement, approve or recommend a superior proposal to its shareholders, and enter into or
execute an alternative merger agreement, prior to obtaining the required shareholder approval if (i) the Company has received
a written, bona fide proposal or offer regarding a competing transaction that was not initiated or solicited in breach of
the provisions described above under “—Acquisition Proposal” and (ii) the Company Board determines, in
its good faith judgment upon the recommendation of the Special Committee (upon advice by its financial advisor and independent
legal counsel) that such competing transaction constitutes a superior proposal and failure to make a change in its recommendation
with respect to such superior proposal would be inconsistent with its fiduciary obligations to the Company and its shareholders
under applicable law; provided, however, that prior to taking such action:
| · | the
Board has given at least five days’ prior written notice to Holdco advising Holdco
that the Board has received a superior proposal, specifying the material terms and conditions
of such superior proposal, identifying the person making such superior proposal, and
indicating that the Board intends to take any actions described above and the manner
in which it intends (or may intend) to do so; |
| · | the
Company has negotiated in good faith with Holdco during the period described in the immediately
preceding bullet point, to the extent Holdco wishes to negotiate, to enable Holdco to
make such adjustments in the terms and conditions of the Merger Agreement to that such
superior proposal would cease to constitute a superior proposal; |
| · | the
Company has permitted Holdco and its representatives to make a presentation, to the extent
Holdco desires to make such presentation, to the Board and the Special Committee regarding
the Merger Agreement and any adjustments with respect thereto; and |
| · | Holdco
does not, within ten business days of Holdco’s receipt of the notice of superior
proposal, make an offer that the Board determines, in its good faith judgment upon the
recommendation of the Special Committee (after consultation with its financial advisor
and independent legal counsel), to be at least as favorable to the Company’s shareholders
as such superior proposal. |
In addition, if the Board determines, in
its good faith judgment upon the recommendation of the Special Committee, prior to obtaining the required shareholder approval
and upon advice by its independent legal counsel, that failure to change, withhold, withdraw, qualify or modify or propose to
change, withhold, withdraw, qualify or modify its recommendation would be inconsistent with its fiduciary obligations to the Company
and its shareholders under applicable law, the Board may, upon the recommendation of the Special Committee, change, withhold,
withdraw, qualify or modify or propose to change, withhold, withdraw, qualify or modify its recommendation, provided that the
Board shall (i) provide ten business days’ prior written notice to Holdco advising Holdco that the Board intends to effect
a change of recommendation and specifying in reasonable detail the facts underlying and the reasons for the decision by the Board
(acting upon the recommendation of the Special Committee) to take such action and (ii) during such ten business day period, if
requested by Holdco, engage in good faith negotiations with Holdco to amend this Agreement in such a manner that obviates the
need for such change of recommendation.
Debt Financing
Each of Holdco and Merger Sub will use
its reasonable best efforts to take or cause to be taken all actions necessary, proper or advisable to arrange and obtain the
debt financing on the terms and conditions described in the debt commitment letter issued by the Lead Arranger, regarding the
provision of debt financing for the Transactions, including to (i) maintain in effect the debt commitment letter, (ii) satisfy
on a timely basis all conditions to the closing of and funding under the debt commitment letter that are within its control, including
paying when due all fees arising under the debt commitment letter as and when they become due and payable thereunder, (iii) consummate
the financing contemplated by the debt commitment letter at the Effective Time, and (iv) enforce the parties’ funding obligations
(and its rights) under the debt commitment letter to the extent necessary to fund the merger consideration.
Holdco and Merger Sub may amend the debt
commitment letter and/or elect to replace such proposed debt financing with alternative debt financing on terms and conditions
not materially less favorable, in the aggregate, from the standpoint of the Company than the terms and conditions set forth in
the debt commitment letter, so long as (i) the aggregate proceeds of the debt financing and/or any alternative debt financing
will be sufficient for the payment of the merger consideration and other amounts required to be paid in connection with the Transactions,
and (ii) such amendment or such alternative debt financing does not (a) impose new conditions compared to those in the debt commitment
letter that would reasonably be expected to prevent or materially delay the ability of Holdco or Merger Sub to consummate the
Merger or (b) involve any change that would adversely impact the ability of Holdco or Merger Sub to enforce their rights against
the debt financing sources.
If any portion of the debt financing becomes
unavailable on the terms and conditions contemplated by the debt commitment letter, Holdco and Merger Sub will promptly notify
the Company in writing and use their reasonable best efforts to obtain alternative debt financing as promptly as practicable following
the occurrence of such event. If Holdco becomes aware of the existence of any fact or event that would reasonably be expected
to cause the debt financing to become unavailable on the terms and conditions contemplated in the debt commitment letter, Holdco
and Merger Sub will use their reasonable best efforts to either cure or eliminate such fact or event, or to arrange and obtain
alternative debt financing. Holdco will delivery to the Company true and complete copies of the executed alternative debt financing
documents as promptly as practicable (and no later than two business days) after their execution.
Holdco and Merger Sub will give the Company
prompt written notice (i) of any material breach or default by any party to the debt commitment letter that would reasonably be
expected to result in any condition to the debt commitment letter not to be satisfied or the termination of the debt commitment
letter, of which Holdco or Merger Sub becomes aware, (ii) of the receipt of any written notice or other written communication
from any person to the debt commitment letter with respect to any alleged or potential breach, default, termination or repudiation
by any party to the debt commitment letter or any provision of the debt commitment letter related to debt financing that would
reasonably be expected to result in any condition to the debt commitment letter not to be satisfied or the termination of the
debt commitment letter, (iii) of any material dispute or disagreement between or among parties to the debt commitment letter that
would reasonably be expected to prevent or materially delay the debt financing, and (iv) if Holdco or Merger Sub at any time believes
that it will not be able to obtain all or any portion of the debt financing on the terms, in the manner or from the sources contemplated
by the debt commitment letter. Holdco and Merger Sub will, upon written request of the Company, provide the Company with such
information as shall be reasonably requested by the Company to allow the Company to monitor the progress of their efforts to arrange
the debt financing (including any alternative financing).
Financing Assistance
Prior to the closing of the Merger, the
Company and its subsidiaries will use their reasonable best efforts to provide to Holdco, Merger Sub and the debt financing sources,
at Holdco’s sole expense, all reasonable cooperation reasonably requested by Holdco that is necessary in connection with
the debt financing, including (i) furnishing to Holdco and Merger Sub as promptly as available with certain required financial
information of the Company, (ii) participate in a reasonable number of customary meetings, presentations and/or due diligence
sessions, including arranging for reasonable and customary direct contact between representatives of the Company and representatives
of Holdco and/or the debt financing sources, (iii) facilitating the securing or pledging of collateral in connection with the
debt financing as reasonably requested by Holdco and the lender parties under the debt commitment letter and customary for financings
similar to the debt financing, (iv) furnishing all documentation and other information required with respect to debt financing
and/or alternative debt financing under applicable “know your customer” and anti-money laundering rules and regulations,
and (v) taking reasonable and customary corporate actions necessary to permit the consummation of the debt financing and/or alternative
financing, including the execution and delivery at the closing of the Merger any document or instrument required by the debt commitment
letter or other definitive financing document related to debt financing and/or alternative debt financing.
Holdco and Merger Sub will, promptly upon
request by the Company, reimburse the Company for all documented and reasonable out-of-pocket costs incurred by the Company or
its subsidiaries in connection with any cooperation provided pursuant to the above, and will jointly and severally indemnify and
hold harmless the Company, its subsidiaries and their respective representatives from and against any and all liabilities, losses,
damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the
arrangement of the debt financing and any information utilized in connection therewith, except as a direct result of the willful
misconduct of the Company, its subsidiaries or any of their respective representatives.
Directors' and Officers' Indemnification and Insurance
Pursuant to the Merger Agreement, Parent
and Merger Sub have agreed that:
| · | The
memorandum and articles of association of the surviving company will contain provisions
no less favorable with respect to exculpation and indemnification than are set forth
in the memorandum and articles of association of the Company, which provisions will not
be amended, repealed or otherwise modified for a period of six years from the Effective
Time in any manner that would affect adversely the rights thereunder of individuals who,
at or prior to the Effective Time, were directors, officers, employees, fiduciaries or
agents of the Company, unless such modification is required by law. |
| · | The
surviving company will maintain the Company's directors and officers liability insurance
for a period of six years after the Effective Time on terms with respect to coverage
no less favorable than the Company's existing insurance; provided that the surviving
company will not be required to expend in any one year an amount in excess of 300% of
the current annual premium paid by the Company for such insurance. The Company may purchase
a six-year “tail” prepaid policy prior to the Effective Time on terms and
conditions no less advantageous to the indemnified parties than the existing directors'
and officers' liability insurance maintained by the Company. |
| · | From
and after the Effective Time, the surviving company will comply with all of the Company's
obligations and will cause its subsidiaries to comply with their respective obligations
to indemnify the current and former directors and officers of the Company or any subsidiaries
against liabilities arising out of or in connection with (a) the fact that such
party is or was a director or officer of the Company or such subsidiary, or (b) any
acts or omissions occurring before or at the Effective Time to the extent provided under
the Company and its subsidiaries' respective organizational and governing documents or
agreements effective on the date of the Merger Agreement and to the fullest extent permitted
by the Cayman Islands Companies Law or any other applicable law. |
Support Agreement
Parent and Holdco will use their reasonable
best efforts to consummate the transactions contemplated by the Support Agreement on its terms and conditions, including using
reasonable best efforts to (i) maintain in full force and effect the Support Agreement until the consummation of the Transactions,
(ii) satisfy on a timely basis all conditions applicable to Parent and Holdco in the Support Agreement, and (iii) cause the Rollover
Shareholders to vote their Shares in favor of the authorization and approval of the Merger Agreement, the Plan of Merger and the
Transactions, hold their respective Rollover Shares through the Effective Time, receive no cash consideration for their Rollover
Shares in the Merger and have such Rollover Shares be converted into ordinary shares of the Surviving Company at the Effective
Time (subject to the conditions set forth in the Support Agreement). Holdco will promptly (and in any event within two business
days) notify the Company and the Special Committee of any termination of, material amendment or modification to be made to, or
any waiver of any material provision or remedy under, the Support Agreement.
Agreement to Use Reasonable Best Efforts
Each party has agreed to use its reasonable
best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things reasonably necessary, proper or
advisable on its part under the Merger Agreement and applicable law to consummate the Transactions as soon as reasonably practicable,
except that the Company will not be required to hold separate, restructure, reorganize, sell, divest, dispose of, or otherwise
take or commit to any action that limits its freedom of action with respect to, or its ability to retain, any of its businesses,
services or assets.
Holdco and/or Parent will prepare and make
all filings and submit all written materials to the relevant PRC governmental authorities as promptly as practicable after the
date of the Merger Agreement and as may be reasonably necessary, proper or advisable for the obtaining of each of the Requisite
Regulatory Approvals. Subject to applicable Laws, prior to submission of any such filing or written materials, Holdco and/or Parent
will (i) provide the Company with a reasonable period of time to review and comment on all of the information relating to the
Company or any of its subsidiaries that appears in any such filing or written materials (the “Company-Related Information”)
and (ii) consider in good faith all comments reasonably proposed by the Company with respect to the Company-Related Information.
Subject to certain exceptions, Parent,
Holdco and Merger Sub will, jointly and severally, indemnify and hold harmless the Company from any damages incurred by the Company
in connection with any claims against the Company or any of its officers and directors resulting from, arising out of or in connection
with Parent, Holdco and/or Merger Sub’s disclosure of the Company-Related Information (other than any information of the
Company included in the Company’s SEC filings) to any governmental authority or made publicly available.
For purposes of the Merger Agreement, “Requisite
Regulatory Approvals” means the filing with the PRC National Development and Reform Commission, the approval by the State-owned
Assets Supervision and Administration Commission of the Beijing Municipal Government of the PRC and the clearance by the PRC Ministry
of Commerce under the PRC anti-monopoly law, in each case, with respect to the consummation of the Transactions by Parent, Holdco
and Merger Sub.
Other Covenants
The Merger Agreement contains additional
agreements between the Company and Parent and /or Merger Sub relating to, among other things:
| · | the
filing of this proxy statement and the Rule 13e-3 transaction statement on Schedule 13E-3
with the SEC (and cooperation in response to any comments from the SEC with respect
to either statement); |
| · | reasonable
access by Holdco and its representatives to the Company's offices, properties, books
and records between the date of the Merger Agreement and the Effective Time (subject
to certain restrictions); |
| · | notification
of certain events; |
| · | Holdco’s
obligation to cause Merger Sub to perform its obligations under the Merger Agreement;
|
| · | participation
in litigation relating to the Merger; |
| · | resignation
of the directors of the Company and its subsidiaries to the extent requested by Holdco;
|
| · | coordination
of press releases and other public announcements relating to the Merger Agreement or
the Transactions; |
| · | delisting
and deregistration of the Company’s Shares; |
| · | matters
relating to takeover statutes; |
| · | repayment
by the Company of certain existing debt; |
| · | actions
of the Company taken at the direction of certain members of the Buyer Group who are directors
of the Company; and |
| · | provision
of comparable base salary and employee benefits for employees of the Company and its
subsidiaries for 12 months following the closing of the Merger. |
Conditions to the Merger
The completion of the Transactions, including
the Merger, is subject to the satisfaction of the following conditions:
| · | the
Merger Agreement, the Plan of Merger and the Transactions being authorized and approved
by the Company's shareholders constituting Requisite Company Vote; |
| · | no
governmental authority having enacted, issued, promulgated, enforced or entered any law
or award, writ, injunction, determination, rule, regulation, judgment, decree or executive
order which is then in effect and has or would have the effect of making the Merger illegal
or otherwise prohibiting the consummation of the Transactions, including the Merger; |
| · | the
Merger Agreement, the Plan of Merger and the Transactions being authorized, approved
and adopted by the Parent’s shareholders constituting Requisite Parent Vote; and |
| · | all
Requisite Regulatory Approvals have been obtained and be in full force and effect. |
The obligations of Holdco and Merger Sub
to consummate the Merger are also subject to the satisfaction, or waiver of the following conditions:
| · | (1)
representations and warranties of the Company in the Merger Agreement regarding the share
capital of the Company being true and correct in all but de minimis respects as
of the date of the Merger Agreement and as of the closing date of the Merger, as if made
on such date and time (other than representations and warranties that by their terms
address matters only as of a specified time, which shall be true and correct in all respects
as of such time), (2) representations and warranties of the Company in the Merger
Agreement regarding (i) the absence of options, warrants, preemptive or other rights
with respect to securities of the Company and each of its subsidiaries, or any securities
that give their holders the right to vote with the Company's shareholders, (ii)
the Company’s corporate power and authority to perform its obligations under and
to consummate the Transactions, and the valid execution and delivery of the Merger Agreement
by the Company and the Merger Agreement as a legal, valid and binding obligation of the
Company, (iii) the declaration of advisability and recommendation to the shareholders
of the Company of the Merger Agreement and the Merger by the Special Committee and by
the Board, and the authorization and approval of the Merger Agreement, the Plan of Merger
and the Transactions, including the Merger, by the Board, and (iv) the receipt of
opinion from Credit Suisse, being true and correct in all respects as of the date of
the Merger Agreement and as of the closing date of the Merger, as if made on such date
and time (other than representations and warranties that by their terms address matters
only as of a specified time, which shall be true and correct in all respects as of such
time), and (3) all other representations and warranties of the Company set forth
in the Merger Agreement (disregarding any limitation or qualification by “materiality”
or “Company Material Adverse Effect”) being true and correct in all respects
as of the date of the Merger Agreement and as of the closing date of the Merger, as if
made on such date and time (other than representations and warranties that by their terms
address matters only as of a specified time, which shall be true and correct in all respects
as of such time), except to the extent that the failure of such representations and warranties
to be true and correct in all respects, individually or in the aggregate, would not reasonably
be expected to have a Company Material Adverse Effect; |
| · | the
Company having performed or complied in all material respects with all agreements and
covenants required to be performed or complied with by it under the Merger Agreement
prior to or at the Effective Time; |
| · | the
Company having delivered to Holdco a certificate, dated the closing date of the Merger,
signed by a senior executive officer of the Company, certifying as to the fulfillment
of the above conditions; and |
| · | since
the date of the Merger Agreement, there not having occurred and be continuing a Company
Material Adverse Effect. |
The obligations of the Company to consummate
the Merger are also subject to the satisfaction, or waiver, of the following conditions:
| · | the
representations and warranties of Holdco and Merger Sub in the Merger Agreement (disregarding
any limitation or qualification by “materiality”) being true and correct
in all respects as of the date of the Merger Agreement and as of the closing date of
the Merger, as if made on and at date and time (other than representations and warranties
that by their terms address matters only as of a specified time, which shall be true
and correct in all respects as of such time), except where the failure of such representations
and warranties to be true and correct, individually or in the aggregate, would not reasonably
be expected to prevent, materially delay or materially impede or impair the ability of
Holdco and Merger Sub to consummate any of the Transactions; |
| · | each
of Holdco and Merger Sub having performed or complied in all material respects with all
agreements and covenants required to be performed or complied with by it under the Merger
Agreement prior to or at the time of closing of the Merger; and |
| · | Holdco
having delivered to the Company a certificate, dated the closing date of the Merger,
signed by an executive officer of Holdco, certifying as to the fulfillment of the above
conditions. |
Termination of the Merger Agreement
The Merger Agreement may be terminated
at any time prior to the Effective Time:
| · | by
mutual written consent of the Company (upon the recommendation of the Special Committee)
and Holdco; |
| · | by
either Parent or the Company (upon the recommendation of the Special Committee), if:
|
| o | the
Merger has not been consummated on or before the date falling nine (9) months from the
date of the Merger Agreement (the “Termination Date”) (a “Termination
Date Termination Event”); |
| o | any
governmental authority has enacted, issued, promulgated, enforced or entered any final,
non-appealable any law or award, writ, injunction, determination, rule, regulation, judgment,
decree or executive order which is then in effect and has or would have the effect of
making the Merger illegal or otherwise prohibiting the consummation of the Transactions
(a “Final Order Termination Event”); |
| o | the
Requisite Company Vote has not been obtained at the Company’s shareholders’
meeting or any adjournment or postponement thereof (a “Company No Vote Termination
Event”); and |
| o | the
Requisite Parent Vote has not been obtained at the Parent’s shareholders’
meeting or any adjournment or postponement thereof (a “Parent No Vote Termination
Event”); |
in each case, provided that this termination right
is not available to any party whose failure to fulfill any of its obligations under the Merger Agreement has been the primary
cause of, or resulted primarily in, the failure of the applicable closing conditions being satisfied.
| o | Holdco
or Merger Sub has breached any of its representations, warranties, agreements or covenants
under the Merger Agreement, such that the corresponding condition to the closing of the
Merger would not be satisfied and such breach is not curable or, if curable, is not cured
prior to the Termination Date following receipt of written notice of such breach from
the Company; provided that this termination right is not available to the Company if
the Company is then in material breach of the Merger Agreement and such breach causes
any of the conditions to the closing of the Merger for the benefit of the Company not
to be satisfied (a “Holdco Breach Termination Event”); |
| o | (i)
all of the conditions set forth in Section 7.01 and Section 7.02 of the Merger Agreement
have been satisfied, (ii) the Company has irrevocably confirmed by notice to Holdco that
all of the conditions set forth in Section 7.03 of the Merger Agreement have been satisfied
or that the Company is willing to waive any unsatisfied conditions in Section 7.03 of
the Merger Agreement, and (iii) Holdco and Merger Sub fail to complete the closing of
the Merger within 10 business days after delivery of such notice (a “Holdco Failure
to Close Termination Event”); and |
| o | if
prior to the receipt of the Requisite Company Vote, (i) the Board has, upon the recommendation
of the Special Committee, authorized the Company to enter into an alternative acquisition
agreement with respect to a superior proposal, (ii) immediately prior to, concurrently
with or immediately following the termination of the Merger Agreement, the Company enters
into an alternative acquisition agreement with respect to such superior proposal, and
(iii) the Company immediately prior to, or concurrently with, such termination pays to
Holdco the company termination fee required to be paid pursuant to the Merger Agreement
(a “Superior Proposal Termination Event”). |
| o | (i)
the Company has breached any of its representations, warranties, agreements or covenants
made by it under the Merger Agreement such that the corresponding condition to the closing
of the Merger would not be satisfied and such breach is not curable or, if curable, is
not cured prior to the Termination Date following receipt of written notice of such breach
from Holdco or Merger Sub; provided that this termination right is not available to Holdco
if either Holdco or Merger Sub is then in material breach of the Merger Agreement and
such breach causes any of the conditions to the closing of the Merger for the benefit
of Holdco and Merger Sub not to be satisfied(a “Company Breach Termination Event”);
and |
| o | (i)
there has been a change in the Board’s recommendation of the Merger, (ii) the Board
has approved, recommended, or has publicly proposed to approve or recommend to the shareholders
of the Company, an offer or proposal regarding a competing transaction, or has approved,
recommended or entered into an alternative acquisition agreement, or (iii) a tender offer
or exchange offer by a third party for 20% or more of the outstanding Shares of the Company
is commenced and the Board fails to recommend against acceptance of such tender offer
or exchange offer by the shareholders of the Company within 10 business days after the
commencement of such tender offer or exchange offer (a “Company Triggering Event
Termination Event”). |
Termination Fee
The Company is required to pay to Parent
a cash termination fee in an amount equal to US$44,437,000 (or, at the Company’s option, an equivalent amount in RMB) if
the Merger Agreement is terminated by:
| · | Holdco
pursuant to a Company Breach Termination Event; |
| · | Holdco
pursuant to a Company Triggering Event Termination Event; |
| · | the
Company pursuant to a Superior Proposal Termination Event; |
| · | the
Company or Holdco pursuant to a Company No Vote Termination Event and if (i) prior to
the Company's shareholders’ meeting, a bona fide offer or proposal regarding a
competing transaction has been made known to the Company or has been publicly announced
or publicly made known and has not been withdrawn, and (ii) within 9 months after such
termination, the Company enters into a definitive agreement related to the same competing
transaction, provided that, for purposes of determining whether a termination fee is
payable by the Company under such circumstances, all references to “20%”
in the definition of “competing transaction” will be deemed to be references
to “50%”; or |
| · | the
Company or Holdco pursuant to a Termination Date Termination Event and if (i) prior to
the Termination Date, a bona fide offer or proposal regarding a competing transaction
has been made known to the Company or has been publicly announced or publicly made known
and has not been withdrawn, (ii) within 9 months after such termination, the Company
enters into a definitive agreement related to the same competing transaction, and (iii)
all of the conditions set forth in Section 7.01 (other than 7.01(a)) of the Merger Agreement
have been satisfied at the time of such termination. |
Parent is required to pay to a PRC subsidiary
of the Company designated by the Company a cash termination fee of an amount in RMB equal to US$88,873,000 if the Merger Agreement
is terminated by the Company pursuant to:
| · | a
Holdco Breach Termination Event; or |
| · | a
Holdco Failure to Close Termination Event. |
Parent is required to pay to a PRC subsidiary
of the Company designated by the Company a cash termination fee of an amount in RMB equal to US$17,775,000 if the Merger Agreement
is terminated by the Company or Holdco pursuant to:
| · | a
Termination Date Termination Event or a Final Order Termination Event and if (i) at the
time of such termination, any of the conditions set forth in Section 7.01 of the Merger
Agreement has not been satisfied and such non-satisfaction is not the result of the Company’s
breach of any of its representations, warranties, covenants or agreements under the Merger
Agreement, (iii) the condition set forth in Section 7.01(a) of the Merger Agreement has
been satisfied, and (iv) the Company has confirmed in writing to Holdco that each of
the conditions set forth in Section 7.02 of the Merger Agreement would be satisfied if
the closing of the Merger were to occur immediately prior to such termination; or |
| · | a
Parent No Vote Termination Event. |
Parent has delivered to the Company a performance
guarantee issued by Industrial and Commercial Bank of China Limited, Beijing Central Business District Branch, in favor of Suzhou
Hengchuang Software Co., Ltd., a wholly owned subsidiary of the Company incorporated in the PRC, pursuant to which, in the event
and to the extent that Parent fails to pay the full amount of the termination fee payable by Parent under the Merger Agreement
when due and in accordance with the Merger Agreement, Suzhou Hengchuang Software Co., Ltd. (upon the written instruction by the
Special Committee or the Board upon the recommendation of the Special Committee) will have the right to the payment of any unpaid
amount of such termination fee in RMB up to RMB567 million upon delivery of a demand to Industrial and Commercial Bank of China
Limited, Beijing Central Business District Branch, no later than November 3, 2016.
Remedies and Limitations on Liability
The Company is entitled to an injunction
or injunctions to prevent breaches of the Merger Agreement by Parent or Merger Sub and to specifically enforce the terms and provisions
thereof against Parent and Merger Sub, which remedies are in addition to any other remedy to which the Company is entitled at
law or in equity, except that the Company will not be entitled to seek an injunction, specific performance or other equitable
relief to enforce Holdco’s and Merger Sub’s obligations under the Merger Agreement to consummate the Merger and effect
the closing of the Merger. In the event that Holdco or Merger Sub fails to consummate the closing of the Merger or otherwise breaches
the Merger Agreement, the Company's right to receive payment of a termination fee in RMB equal to $88,873,000 from Parent, the
expenses pursuant to Section 8.06(c) of the Merger Agreement and any amounts pursuant to Section 6.07(d) or Section 6.09(c) of
the Merger Agreement would be its sole and exclusive remedy against Parent, Holdco, Merger Sub and their respective affiliates.
Parent and Merger Sub are entitled to an
injunction or injunctions to prevent breaches of the Merger Agreement and to enforce specifically the terms and provisions thereof
against the Company, which remedies are in addition to any other remedy to which they are entitled at law or in equity.
While the Company, Parent and Merger Sub
may pursue both a grant of specific performance and payment of a termination fee, none of them will be permitted or entitled to
receive both a grant of specific performance that results in the completion of the Merger and payment of a termination fee.
If any party brings any action to enforce specifically the performance of the terms and provisions of the Merger Agreement by
any party, the Termination Date will automatically be extended by (i) the amount of time during which such action is pending,
plus twenty business days or (ii) such other time period established by the court presiding over such action.
Modification or Amendment
The Merger Agreement may be amended by
action taken by the Company (by the Board upon recommendation of the Special Committee), and Holdco and Merger Sub (by their respective
boards of directors) at any time before the Effective Time, whether before or after approval of the merger by the shareholders
of the Company, but, after any such approval, no amendment shall be made that reduces the amount or changes the type of consideration
into which each of the Shares will be converted upon consummation of the Merger.
PROVISIONS FOR UNAFFILIATED
SECURITY HOLDERS
No provision has been made to (a) grant
the Company’s Unaffiliated Security Holders access to corporate files of the Company or other parties to the Merger or any
of their respective affiliates or (b) obtain counsel or appraisal services at the expense of the Company or any other such
party or affiliate.
DISSENTERS’
RIGHTS
The following is a brief summary of the
rights of holders of the Shares to object to the Merger and receive cash equal to the fair value of their Shares (“dissenters’
rights”). This summary is not a complete statement of the law, and is qualified in its entirety by the complete text of
Section 238 of the Cayman Islands Companies Law, a copy of which is attached as Annex D to this proxy statement. If you are
contemplating the possibility of objecting to the Merger, you should carefully review the text of Annex D, particularly the procedural
steps required to perfect your dissenters’ rights. These procedures are complex and you should consult your Cayman Islands
legal counsel. If you do not fully and precisely satisfy the procedural requirements of the Cayman Islands Companies Law, you
will lose your dissenters’ rights.
Requirements for Exercising Dissenters’ Rights
A dissenting shareholder of the Company
is entitled to payment of the fair value of its, his or her Shares upon dissenting from the Merger in accordance with Section 238
of the Cayman Islands Companies Law.
The valid exercise of your dissenters’
rights will preclude the exercise of any other rights by virtue of holding Shares in connection with the Merger, other than the
right to participate fully in proceedings to determine the fair value of Shares held by such persons and to seek relief on the
grounds that the Merger is void or unlawful. To exercise your dissenters’ rights, the following procedures must be followed:
| · | You must
give written notice of objection to the Company prior to the vote to authorize and approve
the Merger. The notice of objection must include a statement that you propose to demand
payment for your Shares if the Merger is authorized by the vote at the extraordinary
general meeting. |
| · | Within
20 days immediately following the date on which the vote approving the Merger is made,
the Company must give written notice of the authorization (“Approval Notice”)
to all dissenting shareholders who have served a notice of objection. |
| · | Within
20 days immediately following the date on which the Approval Notice is given (the “Dissent
Period”), any dissenting shareholder who elects to dissent must give a written
notice of its, his or her decision to dissent (a “Notice of Dissent”) to
the Company stating its, his or her name and address and the number and class of the
Shares with respect to which it, he or she dissents and demanding payment of the fair
value of its, his or her Shares. A dissenting shareholder must dissent in respect of
all the Shares which it, he or she holds. |
| · | Within
seven days immediately following (a) the date of expiry of the Dissent Period or
(b) the date on which the Plan of Merger is filed with the Cayman Registrar, whichever
is later, the Company, as the surviving company, must make a written offer (a “Fair
Value Offer”) to each dissenting shareholder to purchase its, his or her Shares
at a price determined by the Company to be the fair value of such Shares. |
| · | If, within
30 days immediately following the date of the Fair Value Offer, the Company and the dissenting
shareholder fail to agree on a price at which the Company will purchase the dissenting
shareholder’s Shares, then, within 20 days immediately following the date of the
expiry of such 30-day period, the Company must, and the dissenting shareholder may, file
a petition with the Grand Court of the Cayman Islands (the “Grand Court”)
for a determination of the fair value of the Shares held by all dissenting shareholders
who have served a Notice of Dissent and who have not agreed with the Company as to fair
value, which petition by the Company must be accompanied by a verified list containing
the names and addresses of all members who have filed a Notice of Dissent and who have
not agreed with the Company as to the fair value of such Shares. |
| · | If a
petition is timely filed and served, the Grand Court will determine at a hearing (a) which
shareholders are entitled to dissenters’ rights, (b) the fair value of such
Shares held by those shareholders with a fair rate of interest, if any, to be paid by
the Company upon the amount determined to be the fair value and (c) the costs of
the proceeding and the allocation of such costs upon the parties. |
All notices and petitions must be executed
by or for the shareholder of record, fully and correctly, as such shareholder’s name appears on the register of members
of the Company. If Shares are owned of record in a fiduciary capacity, such as by a trustee, guardian or custodian, these notices
must be executed by or for the fiduciary. If Shares are owned by or for more than one person such notices and petitions must be
executed by or for all joint owners. An authorized agent, including an agent for two or more joint owners, may execute the notices
or petitions for a shareholder of record. The agent must, however, identify the record owner and expressly disclose the fact that,
in exercising the notice, he or she is acting as agent for the record owner. A person having a beneficial interest in Shares held
of record in the name of another person, such as a broker or other nominee, must act promptly to cause the record holder to follow
the steps summarized above and in a timely manner to perfect whatever dissenters’ rights attached to such Shares.
You must be a registered holder of Shares
in order to exercise your dissenters’ rights. A holder of ADSs who wishes to dissent must surrender his, her or its ADSs
to the ADS Depositary and pay the fee of ADS Depositary to withdraw his, her or its Shares and then become a record holder of
such Shares and comply with the procedures described above in order to exercise the dissenters’ rights with respect to the
Shares prior to the extraordinary general meeting. The ADS Depositary will not exercise dissenters’ rights on behalf of
a holder of ADSs and any Notice of Dissent delivered to the ADS Depositary will not be effective under the Cayman Islands Companies
Law. If you wish to cancel your ADSs, please contact the ADS Depositary’s office at 101 Barclay Street, 22nd Floor, New
York, NY 10286.
If you do not satisfy each of these requirements,
you cannot exercise dissenters’ rights and will be bound by the terms of the Merger Agreement and the Plan of Merger. Submitting
a proxy card that does not direct how the Shares represented by that proxy are to be voted will give the proxy discretion to vote
as it determines appropriate. In addition, failure to vote your Shares, or a vote against the proposal to authorize and approve
the Merger Agreement, the Plan of Merger and the Transactions, including the Merger, will not alone satisfy the notice requirement
referred to above. You must send all notices to the Company to Homeinns Hotel Group, No. 124 Caobao Road, Xuhui District, Shanghai
200235, People’s Republic of China, Attention: Ethan Ruan.
If you are considering dissenting, you
should be aware that the fair value of your Shares determined under Section 238 of the Cayman Islands Companies Law could
be more than, the same as, or less than the US$17.90 in cash, without interest, for each Share of the Company that you would otherwise
receive as consideration in the Merger. In addition, in any proceedings for determination of the fair value of the Shares covered
by a Notice of Dissent, the Company and the Buyer Group intend to assert that the Per Share Merger Consideration is equal to the
fair value of each of your Shares.
The provisions of Section 238 of
the Cayman Islands Companies Law are technical and complex. If you fail to comply strictly with the procedures set forth in Section 238,
you will lose your dissenters’ rights. You should consult your Cayman Islands legal counsel if you wish to exercise dissenters’
rights.
FINANCIAL INFORMATION
The Company uses Renminbi as its reporting
currency in its consolidated financial statements. The Company’s business is primarily conducted in the PRC. A significant
portion of its sales, costs and expenses are denominated in Renminbi. This proxy statement contains translations of RMB into U.S.
dollars at specific rates solely for the convenience of the reader. The conversion from RMB to U.S. dollars in financial information
for the year ended and as of 2014 is based on a rate of RMB6.2046 to US$1.00, the exchange rate on December 31, 2014, and
the conversion from RMB to U.S. dollars in financial information for the nine months ended and as of September 30, 2015 is based
on a rate of RMB6.3556 to US$1.00, the exchange rate on September 30, 2015, in each case, as set forth in the H.10 statistical
release published by the Board of Governors of the Federal Reserve System. The Company makes no representation that any RMB or
U.S. dollar amounts could have been, or could be, converted into U.S. dollars or RMB, as the case may be, at any particular rate
or at all. The PRC government imposes control over its foreign currency reserves in part through direct regulation of the conversion
of RMB into foreign currency and through restrictions on foreign exchange activities.
Selected Historical Financial Information
The following sets forth a summary of historical
consolidated financial information of the Company for each of the two years ended and as of December 31, 2013 and 2014 and the
nine months ended September 30, 2014 and 2015. The historical financial information for 2013 and 2014 and as of December 31, 2013
and 2014 has been derived from the Company’s audited consolidated financial statements, prepared in accordance with U.S.
GAAP, included in the Company’s Annual Report on Form 20-F for the year ended December 31, 2014, beginning on page F-1,
which are incorporated into this proxy statement by reference.
The information set forth below is not
necessarily indicative of future results and should be read in conjunction with “Item 5. Operating and Financial Review
and Prospects” and the consolidated financial statements, related notes and other financial information included in the
Company’s Annual Report on Form 20-F for the year ended December 31, 2014, which are incorporated into this proxy statement
by reference. Please see “Where You Can Find More Information” for a description of how to obtain a copy of such Annual
Report.
The following table sets forth selected
consolidated statement of operations data for the years ended December 31, 2013 and 2014 and for the nine months ended September
30, 2014 and 2015.
| |
For
the Year Ended December 31, | | |
For
the Nine Months Ended September 30, | |
| |
2013 | | |
2014 | | |
2014 | | |
2015 | |
| |
RMB | | |
RMB | | |
US$ | | |
RMB | | |
RMB | | |
US$ | |
| |
(in
thousands) | |
| |
(audited) | | |
(unaudited) | |
Consolidated
Statement of Operations Data | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Revenues: | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Leased-and-operated
hotels | |
| 5,587,480 | | |
| 5,741,804 | | |
| 925,411 | | |
| 4,350,720 | | |
| 4,228,974 | | |
| 665,393 | |
Franchised-and-managed
hotels | |
| 765,491 | | |
| 940,944 | | |
| 151,653 | | |
| 696,725 | | |
| 764,718 | | |
| 120,322 | |
Total
revenues | |
| 6,352,971 | | |
| 6,682,748 | | |
| 1,077,064 | | |
| 5,047,445 | | |
| 4,993,692 | | |
| 785,715 | |
Less:
Business tax and related surcharges | |
| (391,821 | ) | |
| (411,118 | ) | |
| (66,260 | ) | |
| (310,795 | ) | |
| (295,675 | ) | |
| (46,522 | ) |
Net
revenues | |
| 5,961,150 | | |
| 6,271,630 | | |
| 1,010,804 | | |
| 4,736,650 | | |
| 4,698,017 | | |
| 739,193 | |
Operating
costs and expenses(1): | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Leased-and-operated
hotel costs: | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Rents
and utilities | |
| (2,108,924 | ) | |
| (2,172,804 | ) | |
| (350,192 | ) | |
| (1,608,457 | ) | |
| (1,660,776 | ) | |
| (261,309 | ) |
Personnel
costs | |
| (1,073,754 | ) | |
| (1,075,222 | ) | |
| (173,294 | ) | |
| (819,189 | ) | |
| (844,565 | ) | |
| (132,885 | ) |
Depreciation
and amortization | |
| (692,945 | ) | |
| (742,886 | ) | |
| (119,731 | ) | |
| (555,070 | ) | |
| (590,606 | ) | |
| (92,927 | ) |
Consumables,
food and beverage | |
| (343,029 | ) | |
| (362,760 | ) | |
| (58,466 | ) | |
| (264,896 | ) | |
| (295,769 | ) | |
| (46,537 | ) |
Others | |
| (648,299 | ) | |
| (669,441 | ) | |
| (107,894 | ) | |
| (476,968 | ) | |
| (467,289 | ) | |
| (73,524 | ) |
Total
leased-and-operated hotel costs | |
| (4,866,951 | ) | |
| (5,023,113 | ) | |
| (809,577 | ) | |
| (3,724,580 | ) | |
| (3,859,005 | ) | |
| (607,182 | ) |
Personnel
costs of franchised-and-managed hotels (1) | |
| (157,314 | ) | |
| (201,244 | ) | |
| (32,435 | ) | |
| (166,964 | ) | |
| (192,549 | ) | |
| (30,296 | ) |
Sales
and marketing expenses (1) | |
| (109,935 | ) | |
| (109,813 | ) | |
| (17,699 | ) | |
| (87,113 | ) | |
| (73,739 | ) | |
| (11,602 | ) |
General
and administrative expenses (1) | |
| (313,480 | ) | |
| (312,008 | ) | |
| (50,287 | ) | |
| (234,582 | ) | |
| (239,384 | ) | |
| (37,665 | ) |
Total
operating costs and expenses | |
| (5,447,680 | ) | |
| (5,646,178 | ) | |
| (909,998 | ) | |
| (4,213,239 | ) | |
| (4,364,677 | ) | |
| (686,745 | ) |
Other
income | |
| 11,089 | | |
| 15,193 | | |
| 2,449 | | |
| 14,745 | | |
| (2,466 | ) | |
| (388 | ) |
Income
from operations | |
| 524,559 | | |
| 640,645 | | |
| 103,255 | | |
| 538,156 | | |
| 330,874 | | |
| 52,060 | |
Interest
income | |
| 6,216 | | |
| 9,295 | | |
| 1,498 | | |
| 5,518 | | |
| 15,004 | | |
| 2,361 | |
Interest
expense | |
| (54,149 | ) | |
| (41,759 | ) | |
| (6,730 | ) | |
| (36,085 | ) | |
| (16,426 | ) | |
| (2,584 | ) |
Accelerated
fee amortization on early extinguishment of Term Loan | |
| (41,872 | ) | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Loss
from equity investment | |
| (792 | ) | |
| (324 | ) | |
| (52 | ) | |
| (131 | ) | |
| (1,181 | ) | |
| (186 | ) |
| |
For
the Year Ended December 31, | | |
For
the Nine Months Ended September 30, | |
| |
2013 | | |
2014 | | |
2014 | | |
2015 | |
| |
RMB | | |
RMB | | |
US$ | | |
RMB | | |
RMB | | |
US$ | |
| |
(in
thousands) | |
| |
(audited) | | |
(unaudited) | |
(Loss)/gain
on change in fair value of convertible notes | |
| (133,404 | ) | |
| 71,945 | | |
| 11,595 | | |
| 79,796 | | |
| (27,169 | ) | |
| (4,275 | ) |
Gain
on buy-back of convertible bond | |
| — | | |
| 650 | | |
| 105 | | |
| 650 | | |
| (1,682 | ) | |
| (265 | ) |
Non-operating
income | |
| 53,663 | | |
| 81,739 | | |
| 13,174 | | |
| 40,339 | | |
| 54,738 | | |
| 8,613 | |
Non-operating
expenses | |
| (1,000 | ) | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Foreign
exchange (loss)/gain, net | |
| 49,830 | | |
| (11,500 | ) | |
| (1,853 | ) | |
| (16,106 | ) | |
| (35,159 | ) | |
| (5,532 | ) |
Income
before income tax expense and non-controlling interests | |
| 403,051 | | |
| 750,691 | | |
| 120,992 | | |
| 612,137 | | |
| 318,999 | | |
| 50,192 | |
Income
tax expense | |
| (206,997 | ) | |
| (231,323 | ) | |
| (37,283 | ) | |
| (178,259 | ) | |
| (134,018 | ) | |
| (21,087 | ) |
Net
income/(loss) | |
| 196,054 | | |
| 519,368 | | |
| 83,709 | | |
| 433,878 | | |
| 184,981 | | |
| 29,105 | |
Less:
Net (income)/loss attributable to non-controlling interests | |
| 168 | | |
| (6,253 | ) | |
| (1,008 | ) | |
| (5,335 | ) | |
| (4,892 | ) | |
| (770 | ) |
Net
income/(loss) attributable to Homeinns shareholders | |
| 196,222 | | |
| 513,115 | | |
| 82,701 | | |
| 428,543 | | |
| 180,089 | | |
| 28,335 | |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Earnings
per share: | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Basic | |
| 2.12 | | |
| 5.38 | | |
| 0.87 | | |
| 4.50 | | |
| 1.87 | | |
| 0.29 | |
Diluted | |
| 2.10 | | |
| 4.55 | | |
| 0.73 | | |
| 3.65 | | |
| 1.87 | | |
| 0.29 | |
Earnings
per ADS (2) : | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Basic | |
| 4.23 | | |
| 10.76 | | |
| 1.73 | | |
| 9.00 | | |
| 3.75 | | |
| 0.59 | |
Diluted | |
| 4.20 | | |
| 9.10 | | |
| 1.47 | | |
| 7.30 | | |
| 3.75 | | |
| 0.59 | |
Weighted
average ordinary shares outstanding: | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Basic | |
| 92,676,258 | | |
| 95,345,023 | | |
| 95,345,023 | | |
| 95,240,465 | | |
| 96,114,751 | | |
| 96,114,751 | |
Diluted | |
| 93,417,644 | | |
| 102,813,619 | | |
| 102,813,619 | | |
| 102,849,954 | | |
| 96,114,751 | | |
| 96,114,751 | |
| (1) | Share-based compensation expenses are included in the consolidated
statement of operations data as follows: |
| |
For
the Year Ended December 31, | | |
For
the Nine Months Ended September 30, | |
| |
2013 | | |
2014 | | |
2014 | | |
2015 | |
| |
RMB | | |
RMB | | |
US$ | | |
RMB | | |
RMB | | |
US$ | |
| |
(in thousands) | |
| |
(audited) | | |
(unaudited) | |
Leased-and-operated
hotel costs—personnel costs | |
| 7,904 | | |
| 7,702 | | |
| 1,241 | | |
| 5,846 | | |
| 4,876 | | |
| 767 | |
Personnel costs of
franchised-and-managed hotels | |
| 11,013 | | |
| 13,152 | | |
| 2,120 | | |
| 9,673 | | |
| 9,601 | | |
| 1,511 | |
Sales and marketing
expenses | |
| 1,514 | | |
| 832 | | |
| 134 | | |
| 653 | | |
| 521 | | |
| 82 | |
General
and administrative expenses | |
| 65,584 | | |
| 66,020 | | |
| 10,640 | | |
| 50,210 | | |
| 43,788 | | |
| 6,890 | |
Total share-based compensation
expenses | |
| 86,015 | | |
| 87,706 | | |
| 14,135 | | |
| 66,382 | | |
| 58,786 | | |
| 9,250 | |
| (2) | Each ADS
represents two Shares. |
The following table sets forth selected
consolidated dated balance sheet data as of December 31, 2014 and 2015 and September 30, 2015.
| |
As
of December 31, | | |
As of | |
| |
2013 | | |
2014 | | |
September
30, 2015 | |
| |
RMB | | |
RMB | | |
US$ | | |
RMB | | |
US$ | |
| |
(in thousands) | |
| |
(audited) | | |
(unaudited) | |
Consolidated
Balance Sheet Data: | |
| | | |
| | | |
| | | |
| | | |
| | |
Cash and cash
equivalents | |
| 1,156,743 | | |
| 949,690 | | |
| 153,062 | | |
| 1,312,278 | | |
| 206,476 | |
Total assets | |
| 9,652,685 | | |
| 9,394,696 | | |
| 1,514,150 | | |
| 9,617,881 | | |
| 1,513,292 | |
Financial liability, current
portion (convertible notes measured at fair value) | |
| — | | |
| 1,029,577 | | |
| 165,938 | | |
| 997,229 | | |
| 156,906 | |
Total current liabilities | |
| 1,831,962 | | |
| 2,785,217 | | |
| 448,895 | | |
| 2,823,668 | | |
| 444,282 | |
Deferred rental | |
| 691,456 | | |
| 705,284 | | |
| 113,671 | | |
| 686,435 | | |
| 108,005 | |
Term loans | |
| 713,337 | | |
| — | | |
| — | | |
| — | | |
| — | |
Financial liability (convertible
notes measured at fair value) | |
| 1,157,295 | | |
| — | | |
| — | | |
| — | | |
| — | |
Ordinary shares | |
| 3,671 | | |
| 3,698 | | |
| 596 | | |
| 3,719 | | |
| 585 | |
Additional paid-in capital | |
| 3,080,596 | | |
| 3,191,076 | | |
| 514,308 | | |
| 3,259,755 | | |
| 512,895 | |
Total Homeinns shareholders’
equity | |
| 4,431,411 | | |
| 5,055,033 | | |
| 814,724 | | |
| 5,301,064 | | |
| 834,077 | |
Ratio of Earnings to Fixed Charges
| |
For
the Year Ended December 31, | | |
For
the Nine Months Ended September 30, | |
| |
2013 | | |
2014 | | |
2014 | | |
2015 | |
| |
(unaudited) | |
Ratio of
Earnings to Fixed Charges | |
| 5.19 | | |
| 18.97 | | |
| 17.96 | | |
| 20.35 | |
Net Book Value per Share of the Shares
The net book value per Share as of September
30, 2015 was US$8.66 based on 96,358,650 issued and outstanding Shares as of that date.
TRANSACTIONS IN
SHARES AND ADSs
Purchases by the Company
The Company’s board of directors
has approved a share repurchase program of up to US$35 million, effective for one year from March 11, 2015. Under the program,
the Company is authorized to repurchase up to US$35 million worth of its outstanding ADSs and Shares from time to time depending
on market conditions and other factors and in accordance with relevant rules under U.S. securities regulations. Since December
31, 2014, the Company has repurchased a total of 18,848 ADSs pursuant to its share repurchase program.
The table below sets forth the details
of our purchases of our own equity securities for each quarter during the past two years.
Period | |
Total Number of
ADS Purchased | | |
Range of Prices Paid Per ADS | |
Average Price Paid Per
ADS | |
2015 | |
| | | |
| |
| | |
First quarter | |
| 15,847 | | |
US$22.49-US$23.99 | |
| US$23.79 | |
Second quarter | |
| 3,001 | | |
US$23.46-US$23.93 | |
| US$23.76 | |
No Shares were purchased in 2014 or subsequent
to the second quarter of 2015.
All Shares underlying ADSs repurchased
by the Company were considered cancelled under Cayman Islands Companies Law, and the excess of the repurchase price over the par
value of the repurchased Shares was charged to additional paid-in capital.
Transactions Within the Buyer Group
Ctrip Transfers
On September 14, 2015, C-Travel Information
Limited (“C-Travel”), a Cayman Islands company wholly owned and controlled by Ctrip, completed a transfer of the beneficial
ownership of 7,514,503 Shares held by C-Travel, which represented all of the Shares beneficially owned by C-Travel, to Ctrip.com
(Hong Kong) Limited (“Ctrip (HK)”), a Hong Kong company wholly owned and controlled by Ctrip, in a private transaction.
On November 27, 2015, Ctrip (HK) completed a transfer of 14,400,765 Shares, which represented all of the Shares beneficially owned
by Ctrip (HK) to Ctrip Shanghai, in a private transaction.
Share Exchange
See “Special Factors—Related-Party
Transactions—Share Exchange” beginning on page 68 of this proxy statement.
Prior Public Offerings
We completed our initial public offering
of ADSs in October 2006. We have not made any underwritten public offering of our securities during the past three years.
Transactions in Prior 60 Days
On November 27, 2015, Mr. Yi Liu and Mr.
Min Bao, directors of the Company, transferred 11,472 and 3,656 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 Share purchase
price equaling the par value of each Share.
On November 27, 2015, Ctrip (HK) completed
a transfer of 14,400,765 Shares held by Ctrip (HK) to Ctrip Shanghai, in a private transaction at a purchase price of US$17.90
per Share.
Except as described above and other than
the Merger Agreement and agreements entered into in connection therewith, including the Support Agreement, and exercise of options
and settlement of restricted share units by the Company’s officers and directors, to the Company’s knowledge, there
has been no transaction in the Company’s Shares or ADSs during the past 60 days by the Company, any of the Company’s
officers and directors, Holdco, Merger Sub, or any other person with respect to which disclosure is provided in Annex F or any
associate or majority-owned subsidiary of the foregoing.
SECURITY OWNERSHIP
OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT OF THE COMPANY
The following table sets forth information
with respect to the beneficial ownership of Shares, as of the date of this proxy statement, by:
| · | each
of the Company’s directors and executive officers; |
| · | the Company’s
directors and executive officers as a group; and |
| · | each
person known to us to beneficially own more than 5.0% of the total issued and outstanding
Shares. |
As of the date of this proxy statement,
we have 97,554,374 Shares issued and outstanding. Beneficial ownership is determined in accordance with the rules and regulations
of the SEC. In computing the number of Shares beneficially owned by a person and the percentage ownership of that person, we have
included Shares that the person has the right to acquire within 60 days from the date of this proxy statement, including through
the exercise of any option, warrant or other right, vesting of restricted share units or the conversion of any other security.
These Shares, however, are not included in the computation of the percentage ownership of any other person.
| |
Shares Beneficially Owned | |
| |
Number | | |
Percentage | |
Directors and Executive Officers: | |
| | | |
| | |
Neil Nanpeng Shen (1) | |
| 18,256,510 | | |
| 18.7 | |
James Jianzhang Liang (2) | |
| 14,733,309 | | |
| 15.1 | |
Yi Liu (3) | |
| 14,742,665 | | |
| 15.1 | |
Min Bao (4) | |
| 14,736,165 | | |
| 15.1 | |
David Jian Sun (5) | |
| 492,944 | | |
| 0.5 | |
May Wu (6) | |
| 306,500 | | |
| 0.3 | |
Jason Xiangxin Zong (7) | |
| 236,172 | | |
| 0.2 | |
Kenneth Gaw (8) | |
| 137,709 | | |
| 0.1 | |
Terry Yongmin Hu (9) | |
| 26,566 | | |
| * | |
Arthur M. Wang (10) | |
| 15,250 | | |
| * | |
Cathy Xiangrong Li (11) | |
| 51,266 | | |
| * | |
All Directors and Executive Officers as a Group(12) | |
| 34,608,126 | | |
| 35.3 | |
Principal Shareholders: | |
| | | |
| | |
OppenheimerFunds, Inc. (13) | |
| 15,727,966 | | |
| 16.1 | |
Poly Victory Investments Limited (14) | |
| 14,726,165 | | |
| 15.1 | |
Ctrip Information Technology (Shanghai) Co., Ltd. | |
| 14,400,765 | | |
| 14.8 | |
FMR LLC (15) | |
| 8,176,400 | | |
| 8.4 | |
* |
The person beneficially owns less than 0.1% of the Company’s
issued and outstanding Shares. |
| (1) | Includes
(i) 375,500 Shares held by Mr. Shen; (ii) 3,275,389 Shares held by Smart Master;
(iii) 183,356 Shares represented by ADS held by Smart Master; (iv) 21,500 Shares
issuable upon exercise of options held by Mr. Shen that are exercisable within 60 days
after the date of this proxy statement and (v) 14,400,765 Shares represented held
by Ctrip Shanghai, a wholly owned subsidiary of Ctrip, of which Mr. Shen is a co-founder
and a director. The business address of Mr. Shen is Suite 3613, 36/F, Two Pacific
Place, 88 Queensway, Hong Kong. |
| (2) | Includes
(i) 4,500 Shares represented by ADSs held by Mr. Liang, (ii) 317,294 Shares
represented by ADS held by Wise Kingdom, a British Virgin Islands company wholly owned
by Ms. Lau, Mr. Liang’s spouse; (iii) 10,750 Shares issuable upon
exercise of options held by Mr. Liang that that are exercisable within 60 days
after the date of this proxy statement and (iv) 14,400,765 Shares represented held
by Ctrip Shanghai, a wholly owned subsidiary of Ctrip, of which Mr. Liang is co-founder,
Chairman of Board of Directors and Chief Executive Officer. Mr. Liang disclaims
the beneficial ownership of all the shares beneficially owned by his spouse. The business
address of Mr. Liang is c/o Ctrip.com International, Ltd., 968 Jin Zhong Road, Shanghai
200335, People’s Republic of China. |
| (3) | Includes
(i) 16,500 Shares issuable upon exercise of options held by Mr. Liu and (ii) 13,446,959
Shares and 1,279,206 Shares represented by ADSs held by Poly Victory, of which Mr. Liu
is a director. Mr. Liu is also the Vice Chairman of the Board of Directors and General
Manager of BTG, the parent company of Poly Victory. The business address of Mr. Liu
is c/o Beijing Tourism Group Co., Ltd., No. 10 Yabao Road, Chaoyang District, Beijing
100020, People’s Republic of China. |
| (4) | Includes
(i) 5,500 Shares represented by ADSs held by Mr. Bao, (ii) 4,500 Shares issuable
upon exercise of options held by Mr. Bao that are exercisable within 60 days
after the date of this proxy statement and (iii) 13,446,959 Shares and 1,279,206
Shares represented by ADSs held by Poly Victory, of which Mr. Bao is a director.
Mr. Bao is Deputy General Manager of BTG, the parent company of Poly Victory. The
business address of Mr. Bao is c/o Beijing Tourism Group Co., Ltd., No. 10
Yabao Road, Chaoyang District, Beijing 100020, People’s Republic of China. |
| (5) | Includes
(i) 30,138 Shares held by Mr. Sun, (ii) 228,806 Shares held by Peace Unity,
a company solely owned and controlled by Mr. Sun, (iii) 40,000 Shares represented
by ADSs held by Peace Unity, and (iv) 194,000 Shares issuable upon exercise of options
held by Mr. Sun that are exercisable within 60 days after the date of this
proxy statement. The business address of Mr. Sun is c/o Homeinns Hotel Group, No. 124,
Caobao Road, Xuhui District, Shanghai 200235, People’s Republic of China. |
| (6) | Includes
(i) 198,000 Shares held by Ms. Wu and (ii) 108,500 Shares issuable upon
exercise of options held by Ms. Wu that are exercisable within 60 days after
the date of this proxy statement. The business address of Ms. Wu is c/o Homeinns
Hotel Group, No. 124, Caobao Road, Xuhui District, Shanghai 200235, People’s
Republic of China. |
| (7) | Includes
(i) 74,272 Shares held by Mr. Zong, (ii) 10,000 Shares represented by
ADS and (iii) 151,900 Shares issuable upon exercise of options held by Mr. Zong
that are exercisable within 60 days after the date of this proxy statement. The
business address of Mr. Zong is c/o Homeinns Hotel Group, No. 124, Caobao Road,
Xuhui District, Shanghai 200235, People’s Republic of China. |
| (8) | Includes
(i) 50,500 Shares and 32,800 Shares represented by ADSs held by Mr. Gaw, (ii) 32,659
Shares and 11,000 Shares represented by ADSs held by Top Elite Company Limited, a company
solely owned and controlled by Mr. Gaw, and (iii) 10,750 Shares issuable upon
exercise of options held by Mr. Gaw that are exercisable within 60 days after
the date of this proxy statement. The business address of Mr. Gaw is 22nd Floor,
1 Lyndhurst Tower, No. 1 Lyndhurst Terrace, Central, Hong Kong. |
| (9 | Includes
(i) 13,126 Shares held by Mr. Hu and (ii) 13,440 Shares issuable upon
exercise of options held by Mr. Hu that are exercisable within 60 days after
the date of this proxy statement. The business address of Mr. Hu is Suite 906
ICBC Tower, 3 Garden Road, Central, Hong Kong. |
| (10) | Includes
(i) 4,500 Shares held by Mr. Wang and (ii) 10,750 Shares issuable upon exercise
of options held by Mr. Wang that are exercisable within 60 days after the date
of this proxy statement. The business address of Mr. Wang is the Centrium, 22/F,
60 Wyndham Street, Central, Hong Kong. |
| (11) | Includes
(i) 18,266 Shares held by Ms. Li and (ii) 33,000 Shares issuable upon exercise of options
held by Ms. Li that are exercisable within 60 days after
the date of this proxy statement. The business address of Ms. Li is c/o Homeinns
Hotel Group, No. 124, Caobao Road, Xuhui District, Shanghai 200235, People’s
Republic of China. |
| (12) | Includes
(i) 34,032,536 Shares, including Shares represented by ADSs, and (iii) 575,590
Shares issuable upon exercise of options that are exercisable within 60 days after
the date of this proxy statement. |
| (13) | Based
on the Schedule 13D filed with the SEC on June 29, 2015. OppenheimerFunds, Inc.’s
principal business address is Two World Financial Center, 225 Liberty Street, New York,
New York 10281. OppenheimerFunds, Inc. is an investment adviser registered under the
Investment Advisers Act of 1940, as amended. Oppenheimer Development Markets Fund’s
principal business address is 6803 S. Tucson Way, Centennial, Colorado 80112. Oppenheimer
Developing Markets Fund is an investment company registered under section 8 of the Investment
Company Act of 1940, as amended. OppenheimerFunds, Inc. is the beneficial owner of 15,727,966
Shares represented by ADSs, including 13,435,426 Shares represented by ADSs that are
held by Oppenheimer Developing Markets Fund. |
| (14) | Includes
(i) 13,446,959 Shares and (ii) 1,279,206 Shares represented by ADSs held by
Poly Victory. |
| (15) | Based
on the Schedule 13G/A filed with the SEC on February 12, 2016. FMR LLC’s
principal business office is 245 Summer Street, Boston, Massachusetts 02210. One investment
company, Fidelity Growth Company Fund, which is advised by Fidelity Management &
Research Company, a wholly owned subsidiary of FMR LLC, holds 5,050,644 of these Shares. |
FUTURE SHAREHOLDER
PROPOSALS
If the Merger is completed, we will not
have public shareholders and there will be no public participants in any future shareholders’ meeting. If, however, the
Merger is not completed, an annual general meeting is expected to be held later in 2016.
CAUTIONARY NOTE
REGARDING FORWARD-LOOKING STATEMENTS
Certain statements in this proxy statement,
the documents attached hereto and the documents incorporated by reference into this proxy statement are forward-looking statements
based on estimates and assumptions. These include statements as to such things as our financial condition, results of operations,
plans, objectives, future performance and business, as well as forward-looking statements relating to the Merger. Such forward-looking
statements are based on facts and conditions as they exist at the time such statements are made. Forward-looking statements are
also based on current expectations, estimates and projections about our business and the Merger, the accurate prediction of which
may be difficult and involve the assessment of events beyond our control. The forward-looking statements are further based on
assumptions made by management. Forward-looking statements can be identified by forward-looking language, including words such
as “believes,” “anticipates,” “expects,” “estimates,” “intends,” “may,”
“plans,” “predicts,” “projects,” “will,” “would” and similar expressions,
or the negative of these words. These statements are not guarantees of the underlying expectations or future performance and involve
risks and uncertainties that are difficult to predict. Readers of this proxy statement are cautioned to consider these risks and
uncertainties and not to place undue reliance on any forward-looking statements.
The following factors, among others, could
cause actual results or matters related to the Merger to differ materially from what is expressed or forecasted in the forward-looking
statements:
| · | the satisfaction
of the conditions to completion of the Merger, including the authorization and approval
of the Merger Agreement by the Company’s shareholders; |
| · | the occurrence
of any event, change or other circumstance that could give rise to the termination of
the Merger Agreement; |
| · | debt
financing may not be funded at the Effective Time because of the failure of Holdco and
Merger Sub to meet the closing conditions or for other reasons, which may result in the
Merger not being completed promptly or at all; |
| · | the effect
of the announcement or pendency of the Merger on our business relationships, results
of operations and business generally; |
| · | the risk
that the Merger may not be completed in a timely manner or at all, which may adversely
affect our business and the price of Shares and ADSs; |
| · | the potential
adverse effect on our business, properties and operations because of certain covenants
we agreed to in the Merger Agreement; |
| · | diversion
of our management’s attention from our ongoing business operations; |
| · | loss
of our senior management; |
| · | the amount
of the costs, fees, expenses and charges related to the Merger and the actual terms of
the financings that will be obtained for the Merger; |
| · | our failure
to comply with regulations and changes in regulations; |
| · | the outcome
of any legal proceedings, regulatory proceedings or enforcement matters that may be instituted
against us and others relating to the Merger; and |
| · | other
risks detailed in our filings with the SEC, including the information set forth under
the section entitled “Item 3D. Risk Factors” in our Annual Report on Form
20-F for the year ended December 31, 2014. See “Where You Can Find More Information”
beginning on page 109 for additional information. |
Furthermore, the forward-looking statements
do not reflect the potential impact of any future acquisitions, mergers, dispositions, joint ventures, collaborations, dividends
or investments made by the parties. We believe that the assumptions on which our forward-looking statements are based are reasonable.
However, forward-looking statements involve inherent risks, uncertainties and assumptions. In addition, many of the factors that
will determine our future results are, however, beyond our ability to control or predict and we cannot guarantee any future results,
levels of activity, performance or achievements. We cannot assure you that the actual results or developments we anticipate will
be realized or, if realized, that they will have the expected effects on our business or operations. In light of the significant
uncertainties inherent in the forward-looking statements, readers should not place undue reliance on forward-looking statements,
which speak only as of the date on which the statements were made and it should not be assumed that the statements remain accurate
as of any future date. All subsequent written and oral forward-looking statements concerning the Merger or other matters addressed
in this proxy statement and attributable to us or any person acting on our behalf are expressly qualified in their entirety by
the cautionary statements contained or referred to in this section. Further, forward-looking statements speak only as of the date
they are made and, except as required by applicable law or regulation, we undertake no obligation to update these forward-looking
statements to reflect future events or circumstances.
WHERE
YOU CAN FIND MORE INFORMATION
We are subject to the reporting requirements
of the Exchange Act applicable to foreign private issuers and we file or furnish our annual and current reports and other information
with the SEC. You may read and copy these reports and other information at the SEC’s Public Reference Room at 100 F Street
NE, Washington, D.C. 20549 at prescribed rates. Information on the operation of the Public Reference Room may be obtained by calling
the SEC at 1-800-SEC-0330. The information we file or furnish is also available free of charge on the SEC’s website at http://www.sec.gov.
You also may obtain free copies of the
documents the Company files with the SEC by going to the “Investor Relations” section of our website at http://www.english.homeinns.com.
Our website address is provided as an inactive textual reference only. The information provided on our website is not part of
this proxy statement, and therefore is not incorporated by reference.
Because the Merger is a going-private transaction,
the Company and the Buyer Group have filed with the SEC a Transaction Statement on Schedule 13E-3 with respect to the Merger.
The Schedule 13E-3, including any amendments and exhibits filed or incorporated by reference therein, is available for inspection
as set forth above. The Schedule 13E-3 will be amended to report promptly any material changes in the information set forth in
the most recent Schedule 13E-3 filed with the SEC.
Statements contained in this proxy statement
regarding the contents of any contract or other document, are not necessarily complete and each such statement is qualified in
its entirety by reference to that contract or other document attached as an exhibit hereto. The SEC allows us to “incorporate
by reference” information into this proxy statement. This means that we can disclose important information by referring
to another document filed separately with the SEC. The information incorporated by reference is considered to be part of this
proxy statement. This proxy statement and the information that we later file with the SEC may update and supersede the information
incorporated by reference. Similarly, the information that we later file with the SEC may update and supersede the information
in this proxy statement. The Company’s annual report on Form 20-F for the year ended December 31, 2014 filed with the SEC
on April 24, 2015 is incorporated herein by reference. To the extent that any of the periodic reports incorporated by reference
in this proxy statement contain references to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995
with respect to forward-looking statements, we note that these safe harbor provisions do not apply to any forward-looking statements
we make in connection with the going-private transaction described in this proxy statement.
We undertake to provide without charge
to each person to whom a copy of this proxy statement has been delivered, upon request, by first-class mail or other equally prompt
means, within one business day of receipt of the request, a copy of any or all of the documents incorporated by reference into
this proxy statement, other than the exhibits to these documents, unless the exhibits are specifically incorporated by reference
into the information that this proxy statement incorporates.
Requests for copies of our filings should
be directed to our proxy solicitor, MacKenzie Partners, Inc., at the address and phone numbers provided in this proxy statement.
THIS PROXY STATEMENT DOES NOT CONSTITUTE
THE SOLICITATION OF A PROXY IN ANY JURISDICTION TO OR FROM ANY PERSON TO WHOM OR FROM WHOM IT IS UNLAWFUL TO MAKE SUCH PROXY SOLICITATION
IN THAT JURISDICTION. YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROXY STATEMENT TO
VOTE YOUR SHARES AT THE EXTRAORDINARY GENERAL MEETING. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH INFORMATION THAT IS DIFFERENT
FROM WHAT IS CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROXY STATEMENT.
THIS PROXY STATEMENT IS DATED FEBRUARY
23, 2016. YOU SHOULD NOT ASSUME THAT THE INFORMATION CONTAINED IN THIS PROXY STATEMENT IS ACCURATE AS OF ANY DATE OTHER THAN THAT
DATE, AND THE MAILING OF THIS PROXY STATEMENT TO SHAREHOLDERS DOES NOT CREATE ANY IMPLICATION TO THE CONTRARY.
ANNEX A
Agreement and Plan of Merger
AGREEMENT
AND PLAN OF MERGER
among
BTG
Hotels Group (HONGKONG) Holdings Co., Limited,
BTG
Hotels Group (CAYMAN) Holding Co., Ltd,
Homeinns
Hotel Group
and,
solely
for the purposes of Section 6.02(e), Section 6.08, Section 6.09, Section 8.06, Section
9.09
and Section 9.10,
BTG
Hotels (Group) Co., Ltd.
Dated
as of December 6, 2015
|
TABLE
OF CONTENTS
|
|
Page |
|
|
|
Article I |
|
|
THE MERGER |
|
|
|
Section 1.01 |
The Merger |
A-7 |
Section 1.02 |
Closing; Closing Date |
A-7 |
Section 1.03 |
Effective Time |
A-7 |
Section 1.04 |
Effects of the Merger |
A-7 |
Section 1.05 |
Memorandum and Articles of Association of Surviving Company |
A-8 |
Section 1.06 |
Directors and Officers |
A-8 |
|
|
|
Article II |
|
|
EFFECT ON ISSUED SECURITIES; EXCHANGE OF CERTIFICATES |
|
|
|
Section 2.01 |
Effect of Merger on Issued Securities |
A-8 |
Section 2.02 |
Share Incentive Plan and Outstanding Company Share Awards |
A-9 |
Section 2.03 |
Dissenting Shares |
A-10 |
Section 2.04 |
Exchange of Share Certificates, etc |
A-11 |
Section 2.05 |
No Transfers |
A-14 |
Section 2.06 |
Termination of Deposit Agreement |
A-14 |
Section 2.07 |
Adjustments to Merger Consideration |
A-14 |
Section 2.08 |
Agreement of Fair Value |
A-14 |
|
|
|
Article III |
|
|
REPRESENTATIONS AND WARRANTIES OF THE COMPANY |
|
|
|
Section 3.01 |
Organization, Good Standing and Qualification |
A-15 |
Section 3.02 |
Memorandum and Articles of Association |
A-15 |
Section 3.03 |
Capitalization |
A-15 |
Section 3.04 |
Authority Relative to This Agreement; Board Determination; Fairness Opinion |
A-17 |
Section 3.05 |
No Conflict; Required Filings and Consents |
A-18 |
Section 3.06 |
Permits; Compliance with Laws |
A-19 |
Section 3.07 |
SEC Filings; Financial Statements |
A-20 |
Section 3.08 |
Reorganization Report; Proxy Statement |
A-22 |
Section 3.09 |
Absence of Certain Changes or Events |
A-22 |
Section 3.10 |
Absence of Litigation |
A-23 |
Section 3.11 |
Labor and Employment Matters |
A-24 |
Section 3.12 |
Real Property; Title to Assets |
A-25 |
Section 3.13 |
Intellectual Property |
A-26 |
Section 3.14 |
Taxes |
A-27 |
Section 3.15 |
No Secured Creditors |
A-28 |
Section 3.16 |
Material Contracts |
A-28 |
Section 3.17 |
Environmental Matters |
A-29 |
Section 3.18 |
Insurance |
A-30 |
Section 3.19 |
Interested Party Transactions |
A-30 |
Section 3.20 |
Anti-Takeover Provisions |
A-30 |
Section 3.21 |
Brokers |
A-30 |
Section 3.22 |
No Other Representations or Warranties. |
A-31 |
|
|
|
Article IV |
|
|
REPRESENTATIONS AND WARRANTIES OF HOLDCO AND MERGER
SUB |
|
|
|
Section 4.01 |
Corporate Organization |
A-31 |
Section 4.02 |
Capitalization of Holdco and Merger Sub; No Prior Activities |
A-31 |
Section 4.03 |
Authority Relative to This Agreement |
A-32 |
Section 4.04 |
No Conflict; Required Filings and Consents |
A-32 |
Section 4.05 |
Financing |
A-33 |
Section 4.06 |
Brokers |
A-34 |
Section 4.07 |
Absence of Litigation |
A-34 |
Section 4.08 |
Certain Actions |
A-34 |
Section 4.09 |
Buyer Group Contracts |
A-34 |
Section 4.10 |
Ownership of Shares |
A-35 |
Section 4.11 |
Support Agreement |
A-35 |
Section 4.12 |
Solvency |
A-35 |
Section 4.13 |
Non-Reliance on Company Estimates |
A-36 |
Section 4.14 |
Independent Investigation |
A-36 |
Section 4.15 |
No Other Representations or Warranties. |
A-36 |
|
|
|
Article V |
|
|
CONDUCT OF BUSINESS PENDING THE MERGER |
|
|
|
Section 5.01 |
Conduct of Business by the Company Pending the Merger |
A-37 |
|
|
|
Article VI |
|
|
ADDITIONAL AGREEMENTS |
|
|
|
Section 6.01 |
Proxy Statement and Schedule 13E-3 |
A-40 |
Section 6.02 |
Shareholders’ Meetings |
A-41 |
Section 6.03 |
Access to Information |
A-43 |
Section 6.04 |
No Solicitation of Transactions |
A-44 |
Section 6.05 |
Directors’ and Officers’ Indemnification and Insurance |
A-47 |
Section 6.06 |
Notification of Certain Matters |
A-49 |
Section 6.07 |
Financing |
A-50 |
Section 6.08 |
Support Agreement |
A-52 |
Section 6.09 |
Further Action; Reasonable Best Efforts |
A-52 |
Section 6.10 |
Obligations of Merger Sub |
A-54 |
Section 6.11 |
Participation in Litigation |
A-54 |
Section 6.12 |
Resignations |
A-54 |
Section 6.13 |
Public Announcements |
A-54 |
Section 6.14 |
Stock Exchange Delisting |
A-55 |
Section 6.15 |
Takeover Statutes |
A-55 |
Section 6.16 |
Repayment of Existing Debt |
A-55 |
Section 6.17 |
Actions Taken at Direction of the Founder Parties |
A-55 |
Section 6.18 |
Employee Matters |
A-55 |
|
|
|
Article VII |
|
|
CONDITIONS TO THE MERGER |
|
|
|
Section 7.01 |
Conditions to the Obligations of Each Party |
A-56 |
Section 7.02 |
Conditions to the Obligations of Holdco and Merger Sub |
A-56 |
Section 7.03 |
Conditions to the Obligations of the Company |
A-57 |
Section 7.04 |
Frustration of Closing Conditions |
A-57 |
|
|
|
Article VIII |
|
|
TERMINATION, AMENDMENT AND WAIVER |
|
|
|
Section 8.01 |
Termination by Mutual Consent |
A-57 |
Section 8.02 |
Termination by Either the Company or Holdco |
A-58 |
Section 8.03 |
Termination by the Company |
A-58 |
Section 8.04 |
Termination by Holdco |
A-59 |
Section 8.05 |
Effect of Termination |
A-59 |
Section 8.06 |
Fees Following Termination |
A-60 |
|
|
|
Article IX |
|
|
GENERAL PROVISIONS |
|
|
Section 9.01 |
Non-Survival of Representations, Warranties and Agreements |
A-62 |
Section 9.02 |
Notices |
A-63 |
Section 9.03 |
Certain Definitions |
A-64 |
Section 9.04 |
Severability |
A-73 |
Section 9.05 |
Entire Agreement; Assignment |
A-73 |
Section 9.06 |
Interpretation |
A-74 |
Section 9.07 |
Parties in Interest |
A-74 |
Section 9.08 |
Specific Performance |
A-74 |
Section 9.09 |
Confidentiality |
A-75 |
Section 9.10 |
Governing Law; Dispute Resolution |
A-75 |
Section 9.11 |
Amendment |
A-76 |
Section 9.12 |
Waiver |
A-76 |
Section 9.13 |
Counterparts |
A-76 |
ANNEX A |
Plan of Merger |
|
|
APPENDIX I |
Rollover Shareholders |
AGREEMENT AND
PLAN OF MERGER, dated as of December 6, 2015 (this “Agreement”), among BTG Hotels Group (HONGKONG) Holdings
Co., Limited, a company incorporated under the laws of the Hong Kong Special Administrative Region and a wholly owned subsidiary
of Parent (“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”), Homeinns
Hotel Group, an exempted company with limited liability incorporated under the laws of the Cayman Islands (the “Company”),
and, solely for purposes of Section 6.02(e), Section 6.08, Section 6.09, Section 8.06, Section 9.09 and Section 9.10 hereof, BTG
Hotels (Group) Co., Ltd., a joint stock company established and existing under the laws of the PRC (“Parent”).
WHEREAS, upon
the terms and subject to the conditions of this Agreement and in accordance with the Cayman Islands Companies Law Cap. 22 (Law
3 of 1961, as consolidated and revised) (the “CICL”), Holdco and the
Company will enter into a business combination transaction pursuant to which Merger Sub will merge with and into the Company
(the “Merger”), with the Company surviving the Merger;
WHEREAS, the Board
of Directors of the Company (the “Company Board”), acting upon the
unanimous recommendation of the Special Committee of the Company Board (the “Special
Committee”), has (i) determined that it is in the best interests of the Company and its shareholders (other than
the Rollover Shareholders), and declared it advisable, to enter into this Agreement, (ii) approved the execution, delivery
and performance of this Agreement, the Plan of Merger and the consummation of the transactions contemplated hereby and thereby,
including the Merger (collectively, the “Transactions”), and
(iii) resolved to recommend the authorization and approval of this Agreement, the Plan of Merger and the Transactions by the shareholders
of the Company at the Company Shareholders’ Meeting (as defined below);
WHEREAS, each
of the boards of directors of Holdco and Merger Sub has (i) approved the execution, delivery and performance by Holdco and
Merger Sub, respectively, of this Agreement, the Plan of Merger and the consummation of the Transactions, and (ii) declared
it advisable for Holdco and Merger Sub, respectively, to enter into this Agreement and the Plan of Merger;
WHEREAS, the board
of directors of Parent has approved the execution, delivery and performance by Parent of this Agreement, solely for purposes of
Section 6.02(e), Section 6.08, Section 6.09, Section 8.06, Section 9.09 and Section 9.10 hereof; and
WHEREAS, as an
inducement to Holdco’s and Merger Sub’s willingness to enter into this Agreement, concurrently with the execution
and delivery of this Agreement, certain holders of Shares (as defined below) as set forth on Appendix I hereto (collectively,
the “Rollover Shareholders”) have executed and delivered to Holdco
and Parent a support agreement, dated as of the date hereof (the “Support Agreement”),
providing that, among other things, the Rollover Shareholders agree, upon the terms and subject to the conditions in the Support
Agreement, (i) to vote all of their Shares in favor of the authorization and approval of this Agreement, the Plan of Merger
and the Transactions, (ii) to receive no cash consideration for certain of the Shares, including Shares represented by ADSs,
held by each of the Rollover Shareholders as set forth opposite such Rollover Shareholder’s name on Appendix I hereto
(the “Rollover Shares”) in the Merger in accordance with this Agreement, and (iii) that all of the Rollover
Shares shall be converted into ordinary shares of the Surviving Company at the Effective Time.
NOW, THEREFORE,
in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound
hereby, Holdco, Merger Sub and the Company hereby agree as follows:
Article
I
THE
MERGER
Section 1.01 The
Merger.
Upon the terms
and subject to the conditions set forth in this Agreement, and in accordance with the CICL, at the Effective Time, Merger Sub
shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease
and the Company shall continue as the surviving company of the Merger (the “Surviving
Company”) under the laws of the Cayman Islands.
Section 1.02 Closing;
Closing Date.
Unless otherwise
mutually agreed in writing between the Company, Holdco and Merger Sub, the closing for the Merger (the “Closing”)
shall take place at the offices of Skadden, Arps, Slate, Meagher & Flom, 42/F Edinburgh Tower, The Landmark, 15 Queen’s
Road Central, Hong Kong commencing at 9:00 p.m. (Hong Kong time) on the third (3rd) Business Day immediately following the day
on which the last to be satisfied or, if permissible, waived of the conditions set forth in Article VII (other than those conditions
that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions) shall
be satisfied or, if permissible, waived in accordance with this Agreement, or another date or time agreed in writing by the Company
and Holdco (such date being the “Closing Date”).
Section 1.03 Effective
Time.
Subject to the
provisions of this Agreement, on the Closing Date, Merger Sub and the Company shall execute a plan of merger (the “Plan
of Merger”) substantially in the form set out in Annex A attached hereto and such parties shall file the
Plan of Merger and other documents required under the CICL to effect the Merger with the Registrar of Companies of the Cayman
Islands as provided by Section 233 of the CICL. The Merger shall become effective upon the date specified in the Plan of Merger
in accordance with the CICL (the “Effective Time”).
Section 1.04 Effects
of the Merger.
As of the Effective
Time, the Merger shall have the effects specified in the CICL. Without limiting the generality of the foregoing, and subject thereto,
at the Effective Time, the Surviving Company shall succeed to and assume all the rights, property of every description, including
choses in action, and the business, undertaking, goodwill, benefits, immunities and privileges, mortgages, charges or security
interests and all contracts, obligations, claims, debts and liabilities of the Company and Merger Sub in accordance with the CICL.
Section 1.05 Memorandum
and Articles of Association of Surviving Company.
At the Effective
Time, the memorandum and articles of association of Merger Sub, as in effect immediately prior to the Effective Time, shall be
the memorandum and articles of association of the Surviving Company until thereafter amended as provided by law and such memorandum
and articles of association; provided, however, that, at the Effective Time, (a) Article I of the memorandum of
association of the Surviving Company shall be amended to read as follows: “The name of the company is Homeinns Hotel Group.”
and the articles of association of the Surviving Company shall be amended to refer to the name of the Surviving Company as “Homeinns
Hotel Group” and (b) if necessary, references therein to the authorized share capital of the Surviving Company shall be
amended to refer to the authorized share capital of the Surviving Company as approved in the Plan of Merger.
Section 1.06 Directors
and Officers.
The parties hereto
shall take all actions necessary so that (a) the directors of Merger Sub immediately prior to the Effective Time shall be the
initial directors of the Surviving Company from and after the Effective Time, and (b) the officers of Merger Sub immediately prior
to the Effective Time shall be the initial officers of the Surviving Company from and after the Effective Time, in each case,
except as otherwise determined by Holdco prior to the Effective Time and, in the case of the initial directors of the Surviving
Company, as set out in the Plan of Merger until their respective successors are duly elected or appointed and qualified or until
the earlier of their death, resignation or removal in accordance with the memorandum and articles of association of the Surviving
Company.
Article
II
EFFECT
ON ISSUED SECURITIES; EXCHANGE OF CERTIFICATES
Section 2.01 Effect
of Merger on Issued Securities.
At the Effective
Time, by virtue of the Merger and without any action on the part of Holdco, Merger Sub, the Company or the holders of any securities
of the Company:
(a) each
ordinary share, par value US$0.005 per share, of the Company (a “Share”
or, collectively, the “Shares”) issued and outstanding immediately
prior to the Effective Time (other than the Rollover Shares, the Excluded Shares, the Dissenting Shares and Shares represented
by ADSs (each as defined below)) shall be cancelled in consideration for the right to receive US$17.90 in cash per Share without
interest (the “Per Share Merger Consideration”) payable in the manner
provided in Section 2.04;
(b) each
American Depositary Share, representing two (2) Shares (an “ADS” or
collectively, the “ADSs”), issued and outstanding immediately prior
to the Effective Time (other than, if any, ADSs representing the Rollover Shares or the Excluded Shares) shall represent the right
to surrender the ADS in exchange for US$35.80 in cash per ADS without interest (the “Per
ADS Merger Consideration”), pursuant to the terms and conditions set forth in the Deposit Agreement, and in the
event of any conflict between this Agreement and the Deposit Agreement, this Agreement shall prevail;
(c) all
of the Shares, including Shares represented by ADSs (other than the Rollover Shares, the Excluded Shares and the Dissenting Shares),
shall be cancelled and cease to exist and shall thereafter represent only the right to receive the Per Share Merger Consideration
or Per ADS Merger Consideration, as applicable, without interest, and the register of members of the Company shall be amended
accordingly;
(d) none
of the Rollover Shareholders shall have the right to receive any Per Share Merger Consideration or Per ADS Merger Consideration
in respect of the Rollover Shares, and instead, each Rollover Share issued and outstanding immediately prior to the Effective
Time 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;
(e) each
of the Excluded Shares and ADSs representing the Excluded Shares (in each case, issued and outstanding immediately prior to the
Effective Time) shall be cancelled and shall cease to exist without payment of any consideration or distribution therefor;
(f) each
of the Dissenting Shares shall be cancelled and thereafter represent the right to receive the applicable payments in accordance
with Section 2.03; and
(g) each
ordinary share, par value $0.0005 each, of Merger Sub issued and outstanding immediately prior to the Effective Time 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; such ordinary shares, together with the ordinary shares into which the Rollover Shares shall be converted in accordance
with Section 2.01(d), shall constitute the only issued and outstanding share capital of the Surviving Company, which shall be
reflected in the register of members of the Surviving Company.
Section 2.02 Share
Incentive Plan and Outstanding Company Share Awards.
(a) As
soon as practicable following the date hereof, the Company, acting through the Company Board or the compensation committee of
the Company Board, as applicable, shall adopt any resolutions and take any actions which are reasonably necessary to (i) terminate
the Share Incentive Plan and any relevant award agreements applicable to the Share Incentive Plan, as of the Effective Time, (ii) cancel
each Company Share Award that is outstanding and unexercised, whether or not vested or exercisable, as of the Effective Time,
and (iii) otherwise effectuate the provisions of this Section 2.02. From and after the Effective Time, neither Holdco nor the
Surviving Company shall be required to issue Shares, other share capital of the Company or the Surviving Company, share capital
of Holdco or any other consideration (other than as required by this Section 2.02) to any person pursuant to or in settlement
of any Company Share Award. Promptly following the adoption of such resolutions by the Company Board or the compensation committee
of the Company Board, the Company shall deliver written notice to each holder of a Company Share Award informing such holder of
the effect of the Merger on its Company Share Awards.
(b) Each
former holder of a Vested Company Option that is cancelled at the Effective Time shall, in exchange therefor, be paid by the Surviving
Company or one of its Subsidiaries, as soon as practicable after the Effective Time (without interest), a cash amount equal to
the product of (i) the excess, if any, of the Per Share Merger Consideration over the Exercise Price of such Vested Company Option
and (ii) the number of Shares underlying such Company Option; provided that, if the Exercise Price of any such Company
Option is equal to or greater than the Per Share Merger Consideration, such Company Option shall be cancelled without any payment
therefor.
(c) Except
as otherwise set forth in Section 2.02(c) of the Company Disclosure Schedule, each former holder of an Unvested Company Option
and/or a Company Restricted Share Unit, which, in either case, is cancelled at the Effective Time shall, in exchange therefor,
receive as soon as practicable after the Effective Time, a restricted cash award (“RCA”) in an amount in cash
that is the equivalent of, (i) in the case of an Unvested Company Option , the product of (A) the excess, if any, of the Per Share
Merger Consideration over the Exercise Price of such Unvested Company Option and (B) the number of Shares underlying such Unvested
Company Option, and (ii) in the case of a Company Restricted Share Unit, the product of (A) the Per Share Merger Consideration
and (B) the number of Shares underlying such Company Restricted Share Unit; provided that, if the Exercise Price of any
such Unvested Company Option is equal to or greater than the Per Share Merger Consideration, such Unvested Company Option shall
be cancelled without any payment therefor. Any RCA issued by the Surviving Company in respect of any Unvested Company Option or
Company Restricted Share Unit shall be subject to the same vesting conditions and schedules applicable to such Unvested Company
Option or Company Restricted Share Unit without giving effect to the Transactions. On the date, and to the extent, that any Unvested
Company Option or Company Restricted Share Unit would have become vested without giving effect to the Transactions, such corresponding
portion of the RCA shall be delivered to the holder of such RCA, net of any applicable withholding taxes, as soon as practicable
thereafter (without interest).
(d) Any
payment under this Section 2.02 shall be subject to all applicable Taxes and tax withholding requirements.
(e) As
of the Effective Time, all Company Share Awards shall automatically cease to exist, and each holder of a Company Share Award shall
cease to have any rights with respect thereto, except the right to receive the cash payment, the RCAs and/or any other consideration
as provided in this Section 2.02.
Section 2.03 Dissenting
Shares.
(a) Notwithstanding
any provision of this Agreement to the contrary and to the extent available under the CICL, Shares that are issued and outstanding
immediately prior to the Effective Time and that are held by shareholders who shall have validly exercised and not effectively
withdrawn or lost their rights to dissent from the Merger in accordance with Section 238 of the CICL (collectively, the “Dissenting
Shares”; holders of Dissenting Shares being referred to as “Dissenting
Shareholders”) shall be cancelled and the Dissenting Shareholders shall not be entitled to receive the Per Share
Merger Consideration and shall instead be entitled to receive only the payment of the fair value of such Dissenting Shares held
by them determined in accordance with the provisions of Section 238 of the CICL, except that all Shares held by Dissenting
Shareholders who shall have failed to exercise or perfect or who effectively shall have withdrawn or lost their rights to dissent
from the Merger under Section 238 of the CICL shall thereupon not be Dissenting Shares and shall be cancelled as of the Effective
Time in consideration for the right to receive the Per Share Merger Consideration, without any interest thereon, in the manner
provided in Section 2.04.
(b) The
Company shall give Holdco (i) prompt notice of any written notices of objection, written notices of approval, written notices
of dissent or written demands for appraisal or written offers under Section 238 of the CICL received by the Company, attempted
written withdrawals of such notices, demands or offers, and any other instruments served pursuant to applicable Law and received
by the Company relating to its shareholders’ rights to dissent from the Merger and (ii) the opportunity to direct all
negotiations and proceedings with respect to demands for appraisal under the CICL. The Company shall not, except with the
prior written consent of Holdco, make any offers or payment with respect to any exercise by a shareholder of its rights to dissent
from the Merger or any demands for appraisal or offer to settle or settle any such demands or approve any withdrawal of any such
demands.
(c) In
the event that any written notices of objection to the Merger are served by any shareholders of the Company pursuant to section
238(2) of the CICL, the Company shall serve written notice of the authorization of the Merger on such shareholders pursuant to
section 238(4) of the CICL within two (2) days of the approval of the Merger by shareholders of the Company at the Company Shareholders’
Meeting.
Section 2.04 Exchange
of Share Certificates, etc.
(a) Paying
Agent. Prior to the Effective Time, Holdco shall appoint a bank or trust company selected by Holdco with the Company’s
prior consent (such consent not to be unreasonably withheld, conditioned or delayed) to act as paying agent (the “Paying
Agent”) for all payments required to be made pursuant to Sections 2.01(a), 2.01(b) and 2.02(b) (collectively, the “Merger
Consideration”). At or prior to the Effective Time, Holdco shall deposit, or cause to be deposited, with the Paying
Agent, for the benefit of the holders of Shares (other than Excluded Shares), ADSs and Company Share Awards (to the extent provided
in Section 2.02(b)), cash in an amount sufficient to pay the Merger Consideration (such cash being hereinafter referred to as
the “Exchange Fund”).
(b) Exchange
Procedures. As promptly as practicable after the Effective Time, the Surviving Company shall cause the Paying Agent to mail
to each person who is, immediately prior to the Effective Time, a registered holder of Shares entitled to receive the Per Share
Merger Consideration pursuant to Section 2.01(a): (i) a letter of transmittal (which shall be in customary form for a company
incorporated in the Cayman Islands reasonably acceptable to Holdco and the Company, and shall specify the manner in which the
delivery of the Exchange Fund to registered holders of Shares (other than Excluded Shares) shall be effected and contain such
other provisions as Holdco and the Company may mutually agree); and (ii) instructions for use in effecting the surrender
of any issued share certificates representing Shares (the “Share Certificates”)
(or affidavits and indemnities of loss in lieu of the Share Certificates as provided in Section 2.04(d)) and/or such other documents
as may be required in exchange for the Per Share Merger Consideration. Upon surrender of, if applicable, a Share Certificate (or
affidavit and indemnity of loss in lieu of the Share Certificate as provided in Section 2.04(d)) and/or such other documents as
may be required pursuant to such instructions to the Paying Agent in accordance with the terms of such letter of transmittal,
duly executed in accordance with the instructions thereto, each registered holder of Shares represented by such Share Certificate
shall be entitled to receive in exchange therefor a check, in the amount equal to (x) the number of Shares represented by
such Share Certificate (or affidavit and indemnity of loss in lieu of the Share Certificate as provided in Section 2.04(d)) multiplied
by (y) the Per Share Merger Consideration, and the Share Certificate so surrendered shall forthwith be marked as cancelled. Prior
to the Effective Time, Holdco and the Company shall establish procedures with the Paying Agent and the Depositary to ensure that
(A) the Paying Agent will transmit to the Depositary as promptly as reasonably practicable following the Effective Time (but in
any event not later than five (5) Business Days thereafter) an amount in cash in immediately available funds equal to the product
of (x) the number of ADSs issued and outstanding immediately prior to the Effective Time (other than, if any, ADSs representing
Rollover Shares or Excluded Shares) and (y) the Per ADS Merger Consideration, and (B) the Depositary will distribute the Per ADS
Merger Consideration to holders of ADSs pro rata to their holdings of ADSs (other than, if any, ADSs representing Rollover Shares
or Excluded Shares) upon surrender by them of the ADSs. The Surviving Company will pay any applicable fees, charges and expenses
of the Depositary and government charges (other than withholding taxes, if any) due to or incurred by the Depositary in connection
with distribution of the Per ADS Merger Consideration to holders of ADSs and the termination of the ADS program (other than any
ADS cancellation fees, which shall be payable in accordance with the Deposit Agreement). No interest shall be paid or will accrue
on any amount payable in respect of the Shares or ADSs pursuant to the provisions of this Article II. In the event of a transfer
of ownership of Shares that is not registered in the register of members of the Company, a check for any cash to be exchanged
upon due surrender of the relevant Share Certificate(s) may be issued to such transferee if the Share Certificate(s), if any,
which immediately prior to the Effective Time represented such Shares, are presented to the Paying Agent, accompanied by all documents
reasonably required to evidence and effect such transfer and to evidence that any applicable share transfer taxes have been paid
or are not applicable.
(c) Payment
of Certain Company Share Awards. As promptly as practicable after the Effective Time (without interest) (but in any event
not later than five (5) Business Days thereafter), Holdco shall cause the Paying Agent to transmit to the Surviving Company and/or
one or more of its Subsidiaries an amount in cash in immediately available funds equal to the amounts required to be paid to former
holders of Company Share Awards to the extent required pursuant to Section 2.02(b).
(d) Lost
Certificates. If any Share Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming such Share Certificate to be lost, stolen or destroyed and, if required by the Surviving Company or
the Paying Agent, the posting by such person of a bond, in such reasonable amount as the Surviving Company or the Paying Agent
may direct, as indemnity against any claim that may be made against it with respect to such Share Certificate, the Paying Agent
will pay in respect of the Shares represented by such lost, stolen or destroyed Share Certificate an amount equal to the Per Share
Merger Consideration multiplied by the number of Shares represented by such Share Certificate to which the holder thereof is entitled
pursuant to Section 2.01(a).
(e) Untraceable
Shareholders. Remittances for the Per Share Merger Consideration or the Per ADS Merger Consideration, as the case may be,
shall not be sent to holders of Shares or ADSs who are untraceable unless and until, except as provided below, they notify the
Paying Agent or the Depositary, as applicable, of their current contact details prior to the Effective Time. A holder of Shares
or ADSs will be deemed to be untraceable if (i) such person has no registered address in the register of members (or branch
register) maintained by the Company or the Depositary, as applicable,
or (ii) on the last two consecutive occasions on which a dividend has been paid by the Company a check payable to
such person either (x) has been sent to such person and has been returned undelivered or has not been cashed or (y) has
not been sent to such person because on an earlier occasion a check for a dividend so payable has been returned undelivered, and
in any such case no valid claim in respect thereof has been communicated in writing to the Company or the Depositary, as applicable,
or (iii) notice of the Company Shareholders’ Meeting convened to vote on the Merger has been sent to such person and
has been returned undelivered. Dissenting Shareholders and holders of Shares or ADSs who are untraceable who subsequently wish
to receive any monies otherwise payable in respect of the Merger within applicable time limits or limitation periods will be advised
to contact the Surviving Company.
(f) Investment
of Exchange Fund. The Exchange Fund, pending its disbursement to the holders of Shares and ADSs, shall be invested by the
Paying Agent as directed by Holdco or, after the Effective Time, the Surviving Company in (i) short-term direct obligations of
the United States of America, (ii) short-term obligations for which the full faith and credit of the United States of America
is pledged to provide for the payment of principal and interest, (iii) short-term commercial paper rated the highest quality by
either Moody’s Investors Service, Inc. or Standard and Poor’s Ratings Services, or (iv) certificates of deposit, bank
repurchase agreements or banker’s acceptances of commercial banks with capital exceeding US$1 billion. Earnings from investments
shall be the sole and exclusive property of the Surviving Company.
(g) Termination
of Exchange Fund. Any portion of the Exchange Fund that remains undistributed to the holders of Shares and ADSs for twelve
(12) months after the Effective Time shall be delivered to the Surviving Company upon demand, and any holders of Shares or ADS
who have not theretofore complied with this Article II shall thereafter look only to the Surviving Company for the cash to which
they are entitled pursuant to Section 2.01(a) and 2.01(b). Any portion of the Exchange Fund remaining unclaimed by holders of
Shares or ADSs as of a date which is immediately prior to such time as such amounts would otherwise escheat to or become property
of any Governmental Authority shall, to the extent permitted by applicable law, become the property of the Surviving Company free
and clear of any claims or interest of any person previously entitled thereto.
(h) No
Liability. None of the Paying Agent, the Rollover Shareholders, Holdco or the Surviving Company shall be liable to any former
holder of Shares (including Shares represented by ADSs) for cash delivered to a public official pursuant to any abandoned property,
escheat or similar Law.
(i) Withholding
Rights. Each of Holdco, the Surviving Company, the Paying Agent and the Depositary shall be entitled to deduct and withhold
from the consideration otherwise payable pursuant to this Agreement to any holder of Shares, ADSs or Company Share Awards such
amounts as it is required to deduct and withhold with respect to the making of such payment under any provision of U.S. federal,
state, local or foreign Tax Law. To the extent that amounts are so deducted or withheld by Holdco, the Surviving Company, the
Paying Agent or the Depositary, as the case may be, such deducted or withheld amounts shall be treated for all purposes of this
Agreement as having been paid to the holder of the Shares, ADSs or Company Share Awards in respect of which such deduction and
withholding was made by Holdco, the Surviving Company, the Paying Agent or the Depositary, as the case may be and be remitted
to the applicable Governmental Authority by Holdco.
Section 2.05 No
Transfers.
From and after
the Effective Time, (a) no transfers of Shares shall be effected in the register of members of the Company, and (b) the holders
of Shares (including Shares represented by ADSs) outstanding immediately prior to the Effective Time (other than Rollover Shareholders)
shall cease to have any rights with respect to such Shares, except as otherwise provided in this Agreement or by Law. On or after
the Effective Time, any Share Certificates presented to the Paying Agent, Holdco or Surviving Company for transfer or any other
reason shall be canceled (except for the Rollover Shares, the Excluded Shares and the Dissenting Shares) in exchange for the right
to receive the cash consideration to which the holders thereof are entitled pursuant to Section 2.01(a).
Section 2.06 Termination
of Deposit Agreement.
As soon as reasonably
practicable after the Effective Time, the Surviving Company shall provide notice to The Bank of New York Mellon (the “Depositary”)
to terminate the deposit agreement, dated October 31, 2006, between the Company, the Depositary and all holders from time
to time of ADSs issued thereunder (the “Deposit Agreement”) in accordance with its terms.
Section 2.07 Adjustments
to Merger Consideration.
The Per Share
Merger Consideration and the Per ADS Merger Consideration shall be adjusted to reflect appropriately the effect of any share split,
reverse share split, share dividend (including any dividend or distribution of securities convertible into Shares), extraordinary
cash dividends, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with
respect to Shares occurring on or after the date hereof and prior to the Effective Time.
Section 2.08 Agreement
of Fair Value.
Holdco, Merger
Sub and the Company respectively agree that the Per Share Merger Consideration represents the fair value of the Shares for the
purposes of Section 238(8) of the CICL.
Article
III
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
Except as disclosed
in (a) the Company Disclosure Schedule (it being understood that any information set forth in one section or subsection of the
Company Disclosure Schedule shall be deemed to apply and qualify the section or subsection of this Agreement to which it corresponds
in number and each other section or subsection of this Agreement to the extent that it is reasonably apparent that such information
is relevant to such other section or subsection), or (b) the Company SEC Reports (excluding disclosures in the Company SEC Reports
contained in the “Risk Factors” and “Forward Looking Statements” sections to the extent they are general,
nonspecific, forward-looking or cautionary in nature, in each case, other than specific factual information contained therein),
the Company hereby represents and warrants to Holdco and Merger Sub that:
Section 3.01 Organization,
Good Standing and Qualification.
(a) The
Company is an exempted company duly organized, validly existing and in good standing under the Laws of the Cayman Islands. Each
of the Company’s Subsidiaries is a legal entity duly organized or formed, validly existing and in good standing (to the
extent the relevant jurisdiction recognizes such concept of good standing) under the Laws of the jurisdiction of its organization
or formation, and each Group Company has the requisite corporate or similar power and authority and all necessary governmental
approvals to own, lease, operate and use its properties and assets and to carry on its business as it is now being conducted,
except where the failure of any Group Company to be so organized, existing or in good standing or of any Group Company to have
such power, authority or governmental approvals has not had and would not reasonably be expected to have a Company Material Adverse
Effect. Each Group Company is duly qualified or licensed to do business, and is in good standing (to the extent the relevant jurisdiction
recognizes such concept of good standing), in each jurisdiction where the character of the properties and assets owned, leased,
operated or used by it or the nature of its business makes such qualification or licensing necessary, except for any such failure
to be so qualified or licensed or in good standing as would not reasonably be expected to have a Company Material Adverse Effect.
(b) A
true and complete list of each Subsidiary of the Company, together with the jurisdiction of incorporation or organization of each
such Subsidiary, the percentage of the outstanding issued share capital, registered capital or other equity interests of, or other
interest in, each such Subsidiary owned or held by the Company or any Subsidiary of the Company is set forth in Section 3.01(b)
of the Company Disclosure Schedule. Other than the Subsidiaries of the Company listed in Section 3.01(b) of the Company Disclosure
Schedule, there are no other entities as of the date hereof in which a Group Company controls or owns, of record or beneficially,
any direct or indirect equity or other interest or right (contingent or otherwise) to acquire the same.
Section 3.02 Memorandum
and Articles of Association.
The Company has
heretofore furnished or otherwise made available to Holdco a complete and correct copy of the memorandum and articles of association
or equivalent organizational documents, each as amended to date, of each Group Company. Such memorandum and articles of association
or equivalent organizational documents are in full force and effect. Each Group Company is in compliance with the provisions of
its memorandum and articles of association or equivalent organizational documents in all material respects.
Section 3.03 Capitalization.
(a) The
authorized share capital of the Company is US$1,000,000, divided into 200,000,000 Shares. As of the date of this Agreement, (i) 96,421,426
Shares are issued and outstanding, all of which have been duly authorized and are validly issued, fully paid and non-assessable,
(ii) no Shares are held in the treasury of the Company, (iii) 1,911,356 Shares (underlying ADSs representing such Shares)
are held by the Depositary and reserved for future issuance and allocation pursuant to the Share Incentive Plan (and for the avoidance
of doubt are not included in the number of issued and outstanding Shares set forth in clause (i)), (iv) 2,519,396 Shares are subject
to the outstanding Company Stock Options and (v) 2,416,126 Company Restricted Share Units are outstanding.
(b) Section
3.03(b) of the Company Disclosure Schedule sets forth the following information with respect to each Company Share Award outstanding
as of the date of this Agreement: (i) the name of the Company Share Award recipient; (ii) the number of Shares subject
to such Company Share Award; (iii) the exercise or purchase price of such Company Share Award, if applicable; (iv) the date
on which such Company Share Award was granted; (v) the vesting schedule and other vesting conditions (if any) of such Company
Share Award; and (vi) the date on which such Company Share Award expires. The grant of each such Company Share Award was
validly issued and properly approved by the Company Board (or a duly authorized committee or subcommittee thereof) in compliance
with the terms of the Share Incentive Plan and all applicable Laws. Except as set forth in Section 3.03(b) of the Company Disclosure
Schedule or otherwise provided in this Agreement, there are no commitments or agreements of any character to which any Group Company
is bound obligating such Group Company to accelerate or otherwise alter the vesting of any Company Share Award as a result of
the Transactions.
(c) Except
for the Company Share Awards referred to in this Section 3.03, the ADSs, the Deposit Agreement and the Company Convertible Notes,
or as otherwise set forth in Section 3.03(c) of the Company Disclosure Schedule, as of the date of this Agreement, (i) there are
no options, warrants, preemptive rights (other than preemptive rights as may be applicable to shares of the Company’s Subsidiaries
incorporated in the PRC pursuant to applicable PRC Law), conversion rights, redemption rights, share appreciation rights, repurchase
rights or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued share capital
of any Group Company or obligating any Group Company to issue or sell any shares or securities of, or other equity interests in,
any Group Company, and (ii) the Company does not have outstanding any bonds, debentures, notes or other obligations the holders
of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the shareholders
of the Company on any matter.
(d) All
Shares subject to issuance pursuant to the Company Share Awards, upon the vesting and/or settlement and issuance on the terms
and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully
paid and non-assessable. The Company has provided or otherwise made available to Holdco (including through the Company SEC Reports
and the Data Room) accurate and complete copies of (x) the Share Incentive Plan pursuant to which the Company has granted the
Company Share Awards that are currently outstanding, (y) the form of all award agreements evidencing such Company Share Awards
and (z) award agreements evidencing Company Share Awards with terms that are materially different from those set forth in the
forms of award agreement.
(e) Except
as otherwise provided in this Agreement or set forth in Section 3.03(e) of the Company Disclosure Schedule, as of the date of
this Agreement, there are no outstanding contractual obligations of any Group Company to repurchase, redeem or otherwise acquire
any share capital or registered capital, as the case may be, of any Group Company or to make any investment (in the form of a
loan, capital contribution or otherwise) in any person other than any of the Company’s wholly owned Subsidiaries.
(f) The
outstanding share capital or registered capital, as the case may be, of each of the Company’s Subsidiaries and each other
entity in which any Group Company owns any non-controlling equity interest is duly authorized, validly issued, fully paid and
non-assessable, and the portion of the outstanding share capital or registered capital, as the case may be, of each of the Company’s
Subsidiaries and each such other entity that is owned by any Group Company is owned by the relevant Group Company free and clear
of all Liens. Such Group Company has the unrestricted right to vote, and (subject to limitations imposed by applicable Law) to
receive dividends and distributions on, all such equity securities.
Section 3.04 Authority
Relative to This Agreement; Board Determination; Fairness Opinion.
(a) The
Company has the requisite corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder
and, subject to receipt of the Requisite Company Vote, to consummate the Transactions. The execution, delivery and performance
by the Company of this Agreement and the consummation by the Company of the Transactions have been duly authorized by the Company
Board and no other corporate action on the part of the Company is necessary to authorize the execution and delivery by the Company
of this Agreement, the Plan of Merger and the consummation by it of the Transactions, in each case, subject only to the approval
of this Agreement, the Plan of Merger and the Merger by (i) the affirmative vote of holders of Shares representing at least two-thirds
of the Shares present and voting in person or by proxy as a single class at the Company Shareholders’ Meeting in accordance
with Section 233(6) of the CICL and the memorandum and articles of association of the Company 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 fifty percent (50%) of all of the issued and outstanding Shares of the Company as of the close of business (Cayman Islands
time) on the record date established by the Company for the Company Shareholders’ Meeting, the affirmative vote of holders
of Shares representing more than fifty percent (50%) of the Shares (excluding Shares held by the Rollover Shareholders) present
and voting in person or by proxy as a single class at the Company Shareholders’ Meeting ((i) and, if applicable, (ii), the “Requisite
Company Vote”). This Agreement has been duly and validly executed and delivered by the Company and, assuming the due
authorization, execution and delivery by Holdco and Merger Sub, constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general principles
of equity (the “Bankruptcy and Equity Exception”).
(b) The
Company Board, acting upon the unanimous recommendation of the Special Committee, has (i) determined that this Agreement
and the Transactions, on the terms and subject to the conditions set forth herein, are fair to and in the best interests of the
Company and its shareholders (other than the Rollover Shareholders), (ii) approved and declared advisable this Agreement
and the Transactions, (iii) directed that this Agreement, the Plan of Merger and the Transactions be submitted to the holders
of Shares for authorization and approval, and (iv) subject to the terms of this Agreement (including Section 6.04(c)), resolved
to recommend approval of this Agreement, the Plan of Merger and the Transactions to the holders of Shares (the “Company
Recommendation”).
(c) The
Special Committee has received the written opinion of Credit Suisse Securities (USA) LLC (the “Financial
Advisor”), to the effect that, as of the date of such opinion and subject to the limitations, qualifications
and assumptions set forth therein, each of the Per Share Merger Consideration to be received by the holders of Shares and the
Per ADS Merger Consideration to be received by the holders of ADSs (in each case, other than the Rollover Shareholders) is fair,
from a financial point of view, to such holders, a copy of which opinion will be delivered to Holdco promptly after the date of
this Agreement solely for informational purposes. The Financial Advisor has consented to the inclusion of a copy of its opinion
in the Proxy Statement. It is agreed and understood that such opinion may not be relied on by Holdco, Merger Sub or any of their
respective Affiliates.
Section 3.05 No
Conflict; Required Filings and Consents.
(a) The
execution and delivery of this Agreement by the Company do not, and the performance of this Agreement by the Company and the consummation
of the Transactions will not, (i) assuming that the Requisite Company Vote is obtained, conflict with or violate the memorandum
and articles of association of the Company or any equivalent organizational documents of any other Group Company, (ii) assuming
(solely with respect to performance of this Agreement and consummation of the Transactions) that the matters referred to in Section
3.05(a) are complied with and the Requisite Company Vote is obtained, conflict with or violate any statute, law, ordinance, regulation,
rule (including rules and regulations of applicable securities exchanges), code, executive order, injunction, judgment, decree
or other order (“Law”) applicable to any Group Company or by which
any property or asset of any Group Company is bound or affected, or (iii) result in any breach 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 right of termination,
amendment, acceleration or cancellation of, or result in the creation of a Lien on any property or asset of any Group Company
pursuant to, any Contract to which any Group Company is a party or by which any of their respective properties or assets are bound,
except, with respect to clauses (ii) and (iii), for any such conflict, violation, breach, default, right or other occurrence that
would not, individually or in the aggregate, have a Company Material Adverse Effect or prevent or materially impair or delay,
or reasonably be expected to prevent or materially impair or delay, the consummation of the Transactions.
(b) The
execution and delivery of this Agreement by the Company do not, and the performance of this Agreement by the Company and the consummation
by the Company of the Transactions will not, require any consent, approval, authorization or permit of, or filing with or notification
to, any nation or government, any agency, public or regulatory authority (including applicable securities exchanges), instrumentality,
department, commission, court, arbitrator, ministry, tribunal or board of any nation or government or political subdivision thereof,
in each case, whether foreign or domestic and whether national, supranational, federal, provincial, state, regional, local or
municipal (each, a “Governmental Authority”), except (i) for
compliance with the applicable requirements of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) and the rules and regulations promulgated thereunder (including the joining of the Company in the filing
of a Schedule 13E-3, the furnishing of a Form 6-K with the Proxy Statement, and the filing or furnishing of one or more amendments
to the Schedule 13E-3 and such Form 6-K to respond to comments of the SEC, if any, on such documents), (ii) for compliance
with the rules and regulations of the Nasdaq Global Market (“Nasdaq”),
(iii) for the filing of the Plan of Merger and related documentation with the Registrar of Companies of the Cayman Islands
pursuant to the CICL and the publication of notification of the Merger in the Cayman Islands Government Gazette pursuant to the
CICL, (iv) for Requisite Regulatory Approvals and (v) any such consent, approval, authorization, permit, action, filing or notification
the failure of which to make or obtain would not, individually or in the aggregate, have a Company Material Adverse Effect or
prevent or materially impair or delay, or reasonably be expected to prevent or materially impair or delay, the consummation of
the Transactions.
Section 3.06 Permits;
Compliance with Laws.
(a) Each
Group Company is in possession of all material franchises, grants, authorizations, licenses, permits (including but not limited
to operating limits, special industry permits and public hygiene permits), easements, variances, exceptions, consents, certificates
(including but not limited to certificates or other proof evidencing their passing of the fire protection or safety inspection),
approvals and orders of any Governmental Authority necessary for it to own, lease, operate and use its properties and assets or
to carry on its business as it is now being conducted, except for any such franchises, grants, authorizations, licenses, permits,
easements, variances, exceptions, consents, certificates, approvals and orders the absence of which would not, individually or
in the aggregate, reasonably be expected to have a Company Material Adverse Effect (the “Material
Company Permits”). All such Material Company Permits are valid and in full force and effect, and each Group Company
is in compliance, in all material respects, with the terms of the Material Company Permits. As of the date hereof, no suspension
or cancellation of any of the Material Company Permits is pending or, to the knowledge of the Company, threatened. Without limiting
the generality of the foregoing, except as would not have a Company Material Adverse Effect, all approvals, filings and registrations
and other requisite formalities with Governmental Authorities in the People’s Republic of China (the “PRC”)
that are material to the Group Companies, taken as a whole, and are required to be obtained or made in respect of each Group Company
incorporated in the PRC with respect to its capital structure and operations as it is now being conducted, including, but not
limited to, if so material, the approvals of and registrations with the State Administration for Industry and Commerce (“SAIC”),
the State Administration of Foreign Exchange (“SAFE”) and the State
Administration of Taxation, and their respective local counterparts, have been duly completed in accordance with applicable PRC
Laws.
(b) Except
as would not, individually or in the aggregate, have a Company Material Adverse Effect, no Group Company is in conflict with,
or in default, breach or violation of any Law applicable to it (including without limitation, any Laws applicable to its business,
and any Laws related to the protection of personal data) or by which any of its properties or assets are bound. No Group Company
has received any written notice or communication from any Governmental Authority or stock exchange of any non-compliance with
any applicable Laws or listing rules or regulations that has not been cured or of which the statute of limitation has not lapsed
except for such investigations, charges, assertions, reviews or notifications of violations the outcome of which would not, individually
or in the aggregate, have a Company Material Adverse Effect.
(c) Except
as would not, individually or in the aggregate, have a Company Material Adverse Effect, each Group Company has complied in all
material respects with the reporting and/or registration requirements applicable to it under SAFE Circular 7, SAFE Circular 37,
SAFE Circular 75, SAFE Circular 78 or any other applicable SAFE rules and regulations (collectively, the “SAFE Rules
and Regulations”). As of the date hereof, no Group Company has received any written inquiries, notifications, orders
or any other forms of official written correspondence from SAFE or any of its local branches with respect to any actual or alleged
material non-compliance by the Company or any of its Subsidiaries with their respective reporting, registration and/or other procedural
requirement under SAFE Rules and Regulations with respect to the Share Incentive Plan and the Company Share Awards.
(d) No
Group Company or, to the knowledge of the Company, any Company Representative acting on behalf of any Group Company, has, in the
course of its actions for, or on behalf of, a Group Company, (i) made or given any bribe, rebate, payoff, influence payment, kickback
or any other type of payment of any money or anything else of value, whether directly or through another person, that would violate
any Anticorruption Law or (ii) made an offer to pay, a promise to pay or a payment or transfer of money or anything else of value,
or an authorization of such offer, promise, payment or transfer, directly or indirectly, to any Government Official for the purpose
of (A) influencing any act or decision of such Government Official in his official capacity, (B) inducing such Government Official
to do or omit to do any act in violation of his lawful duties, (C) securing any improper advantage or (D) inducing such Government
Official to influence any act or decision of any Governmental Authority.
(e) To
the knowledge of the Company, no officer or director of any Group Company is a Government Official.
(f) No
Group Company has conducted or initiated an internal investigation, made a voluntary or other disclosure to a Governmental Authority,
or, to the knowledge of the Company, received any written notice, citation, report or allegation related to alleged violations
of any applicable Anticorruption Law.
(g) Neither
any of the Group Companies nor, to the knowledge of the Company, any director, officer, employee, or affiliate of any Group Company
is (i) currently subject to any U.S. sanctions administrated by the Office of Foreign Assets Control of the U.S. Treasury or (ii)
has violated, or operated not in compliance with, any applicable export restrictions, anti-boycott regulations or embargo regulations.
Section 3.07 SEC
Filings; Financial Statements.
(a) The
Company has filed all forms, reports and documents required to be filed with the SEC since January 1, 2012 pursuant to the Securities
Act and the Exchange Act (the forms, reports and other documents filed since January 1, 2012 and those filed subsequent to the
date hereof, including any amendments thereto, collectively, the “Company SEC
Reports”). As of the date of filing, in the case of Company SEC Reports filed pursuant to the Exchange Act (and
to the extent such Company SEC Reports were amended, then as of the date of filing of such amendment), and as of the date of effectiveness
in the case of Company SEC Reports filed pursuant to the Securities Act of 1933, as amended (the “Securities Act”)
(and to the extent such Company SEC Reports were amended, then as of the date of effectiveness of such amendment), the Company
SEC Reports (i) complied as to form in all material respects with either the requirements of the Securities Act or the Exchange
Act, as the case may be, and the rules and regulations promulgated thereunder, in each case, as in effect on the date so filed
or effective, and (ii) did not contain any untrue statement of a material fact or omit to state a material fact required to be
stated or incorporated by reference therein or necessary in order to make the statements made therein, in the light of the circumstances
under which they were made, not misleading as of its filing date or effective date (as applicable). No Subsidiary of the Company
has filed, or is required to file, any form, report or other document with the SEC. As used in this Section 3.07, the term “file”
shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available
to the SEC.
(b) Each
of the consolidated financial statements (including, in each case, any notes thereto) contained in or incorporated by reference
into the Company SEC Reports was prepared in accordance with United States generally accepted accounting principles (“U.S.
GAAP”) applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes
thereto) and each fairly presents, in all material respects, the consolidated financial position, results of operations, changes
in shareholders’ equity and cash flows of the Company and its Subsidiaries as at the respective dates thereof and for the
respective periods indicated therein (subject, in the case of unaudited interim statements, to normal year-end audit adjustments
which are not material in the aggregate and the exclusion of certain notes in accordance with the rules of the SEC relating to
unaudited financial statements), in each case in accordance with U.S. GAAP, Regulation S-X of the SEC and the rules and standards
of the Public Company Accounting Oversight Board (except as may be indicated in the notes thereto or, in the case of unaudited
statements, as permitted by the applicable SEC form and related rules of the SEC).
(c) Except
as and to the extent set forth on the audited financial statements of the Company for the fiscal year ended December 31, 2014
(including the notes thereto) included in the 2014 Annual Report, no Group Company has
outstanding (i) any Indebtedness or any commitments therefor, or (ii) any liability or obligation of any nature (whether accrued,
absolute, contingent or otherwise), except for liabilities and obligations (A) incurred in the ordinary course of business
consistent with past practice since December 31, 2014, (B) incurred pursuant to this Agreement or in connection with the
Transactions, or (C) which would not, individually or in the aggregate, have a Company Material Adverse Effect.
(d) The
Company has timely filed all certifications and statements required by (x) Rule 13a-14 or Rule 15d-14 under the Exchange Act or
(y) 18 U.S.C. Section 1350 (Section 906 of the Sarbanes-Oxley Act of 2002) with respect to any Company SEC Report. The Company
is in compliance, in all material respects, with all provisions of the Sarbanes-Oxley Act of 2002 applicable to it. The Company
has established and maintains disclosure controls and procedures (as defined in Rule 13a-15(e) of the Exchange Act) that are reasonably
designed to ensure that all information relating to the Company and its Subsidiaries required to be included in reports filed
or submitted under the Exchange Act is made known on a timely basis to its chief executive officer and chief financial officer
or other persons performing similar functions.
(e) The
Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange
Act) that is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with U.S. GAAP. Neither the Company nor, to the knowledge of the Company,
its independent registered public accounting firm has identified or been made aware of any “significant deficiencies”
or “material weaknesses” (as defined by the Public Company Accounting Oversight Board) in the design or operation
of the internal controls and procedures of the Company that are reasonably likely to adversely affect the ability of the Company
to record, process, summarize and report financial data. To the knowledge of the Company, there is and, since January 1, 2012,
there has been, no fraud or allegation of fraud, whether or not material, that involves (or involved) the management of the Company
or other employees who have (or had) a significant role in the internal controls over financial reporting utilized by the Company.
(f) The
Company is in compliance with the applicable listing and corporate governance rules and regulations of Nasdaq, subject to availing
itself of any “home country” exemption from such rules and regulations available to a “foreign private issuer”
(as defined under the Exchange Act and under the relevant rules and regulations of Nasdaq).
Section 3.08 Reorganization
Report; Proxy Statement.
(a) The
information supplied by the Company with respect to any Group Company to Holdco or any of its Representatives that is disclosed
in the Reorganization Report (the “Reorganization Report”) prepared by Holdco and provided to the Company as
of the date hereof, which will be filed with the Shanghai Stock Exchange in accordance with The Guidelines on the Content and
Form of Information Disclosure by Companies Publicly Offering Securities No. 26 — Applications for Material Asset Reorganization
by Listed Companies, does not contain any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they
were made, not misleading. Notwithstanding the foregoing, the Company makes no representation or warranty with respect to statements
made or incorporated by reference in the Reorganization Report based on information other than that specifically supplied by or
on behalf of the Company for inclusion in the Reorganization Report and disclosed in the Reorganization Report prepared by Holdco
and provided to the Company as of the date hereof.
(b) The
information supplied by the Company for inclusion in the Proxy Statement (including any amendment or supplement thereto or document
incorporated by reference therein) and the Schedule 13E-3 (including any amendment or supplement thereto or document incorporated
by reference therein) shall not (i) on the date the Proxy Statement (including any amendment or supplement thereto) is first mailed
to shareholders of the Company or at the time of the Company Shareholders’ Meeting, contain any untrue statement of any
material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances
under which they are made, not misleading, or (ii) on the date the Schedule 13E-3 and any amendment or supplement thereto is filed
with the SEC, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the
statements made therein, in light of the circumstances under which they are made, not misleading. Notwithstanding the foregoing,
the Company makes no representation with respect to statements made or incorporated by reference therein based on information
supplied by or on behalf of Holdco or Merger Sub for inclusion or incorporation by reference in the Proxy Statement or the Schedule
13E-3.
Section 3.09 Absence
of Certain Changes or Events.
Except for the
execution and performance of this Agreement and the discussions, negotiations and transactions related thereto and as set forth
in Section 3.09 of the Company Disclosure Schedule, since December 31, 2014, each Group Company has conducted their respective
businesses in all material respects in the ordinary course of business consistent with past practice and there has not been:
(a) a
Company Material Adverse Effect;
(b) (i)
any declaration, setting aside or payment of any dividend or other distribution with respect to any shares of share capital of
any Group Company (except for dividends or other distributions by any Subsidiary to the Company or any wholly owned Subsidiary
of the Company) or (ii) any redemption, repurchase or other acquisition of any share capital of any Group Company, except (A)
the withholding of Company’s securities to satisfy Tax obligations with respect to Company Share Award, (B) the acquisition
by the Company of its securities in connection with the forfeiture of Company Share Award or (C) the acquisition by the Company
of its securities in connection with the net exercise of Company Share Award in accordance with the terms thereof;
(c) any
material change by the Company in its accounting principles, except as may be appropriate to conform to changes in statutory or
regulatory accounting rules or U.S. GAAP or regulatory requirements with respect thereto;
(d) any
making or revocation of any material Tax election, any settlement or compromise of any material Tax liability, or any material
change (or request to any taxing authority to change) of the method of accounting of any Group Company for Tax purposes;
(e) any
material increase not in the ordinary course of business in the compensation or benefits payable or to become payable to any director,
officer or employee of any Group Company;
(f) any
adoption of, resolution to approve or petition or similar proceeding, ruling, award, writ, injunction, determination, rule, regulation,
judgment, decree, executive order, settlement or stipulation in relation to, a plan of complete or partial liquidation, resolution,
scheme of arrangement, merger, consolidation, restructuring, recapitalization or other reorganization of any Group Company where
the assets or businesses of such Group Company are material to the Group Companies taken as a whole; or
(g) any
receiver, trustee, administrator or other similar person appointed in relation to the affairs of the Company or its material property.
Section 3.10 Absence
of Litigation.
As of the date
hereof, there is no litigation, suit, claim, action, proceeding or investigation (an “Action”)
pending or, to the knowledge of the Company, threatened against any Group Company or any property or asset of any Group Company,
before any Governmental Authority which (i) has, or if decided adversely against any Group Company, would have a Company
Material Adverse Effect, or (ii) has enjoined, restrained, prevented or materially delayed, or, if decided adversely against
any Group Company, would reasonably be expected to enjoin, restrain, prevent or materially delay, the performance by the Company
of its obligations under this Agreement or the consummation of the Transactions. No Group Company, nor any property or asset of
any Group Company is subject to any continuing order of, consent decree, settlement agreement or other similar written agreement
with, or, to the knowledge of the Company, continuing investigation by, any Governmental Authority, or any order, writ, judgment,
injunction, decree, determination or award of any Governmental Authority, except as would not, individually or in the aggregate,
have a Company Material Adverse Effect.
Section 3.11 Labor
and Employment Matters.
(a) No
Group Company is a party to or bound by any collective bargaining agreement or other labor union contract applicable to persons
employed by it, and, to the knowledge of the Company, as of the date of this Agreement, there are no organizational campaigns,
petitions or other unionization activities seeking recognition of a collective bargaining unit relating to any employee of any
Group Company. There are no material unfair labor practice complaints pending or, to the knowledge of the Company, threatened
against any Group Company before any Governmental Authority and, as of the date hereof, there is no organized strike, slowdown,
work stoppage or lockout, or similar activity currently occurring or, to the knowledge of the Company, threatened against or involving
any Group Company. As of the date of this Agreement, there is no pending or, to the knowledge of the Company, threatened material
dispute between any Group Company and any director, officer or former employee of any Group Company.
(b) Except
as would not, individually or in the aggregate, have a Company Material Adverse Effect, each Group Company is in compliance with
all applicable Laws relating to employment and employment practices, including those related to wages, work hours, shifts, overtime,
Social Security Benefits, holidays and leave, collective bargaining terms and conditions of employment and the payment and withholding
of taxes and other sums as required by the appropriate Governmental Authority. Each Group Company has withheld and paid to the
appropriate Governmental Authority, or are holding for payment not yet due to such Governmental Authority, all amounts required
to be withheld from or paid with respect to the officers, directors and employees of the Group Companies (including the withholding
and payment of all individual income taxes and contributions to Social Security Benefits payable), except for such failure to
withhold and pay such amounts as would not be material to the Company and its Subsidiaries taken as a whole, and, to the knowledge
of the Company, no Group Company is liable for any arrears of material wages, taxes, penalties or other sums for failure to comply
with any of the foregoing. As of the date of this Agreement, there is no charge or proceeding with respect to a violation of any
occupational safety or health standards that is now pending or, to the knowledge of the Company, threatened with respect to any
Group Company and there is no charge of discrimination in employment or employment practices for any unlawful reason, including,
age, gender, race, religion or other legally protected category, that is pending or, to the knowledge of the Company, threatened
against any Group Company before any Governmental Authority in any jurisdiction in which any Group Company has employed or currently
employs any person, which has resulted in, or, if decided adversely against any Group Company, would result in, any liability
that would be material to the Company and its Subsidiaries taken as a whole.
(c) The
Company has provided or otherwise made available to Holdco (including through the Company SEC Reports and the Data Room) true
and complete copies of each Company Employee Plan other than any Company Employee Plan mandated by applicable Law to which the
sole liability of the Company and its Subsidiaries is to make contributions required by Law including plans or programs maintained
by a Governmental Authority requiring the payment of social insurance taxes or similar contributions by the Company or its Subsidiaries
to a fund of a Governmental Authority with respect to wages of an employee.
(d) Each
Company Employee Plan is and has at all times been operated and administered in compliance with the provisions thereof and all
applicable legal requirements in all material respects. All material contributions or payments that are required to have been
accrued or made under or with respect to any Company Employee Plan in respect of current or prior plan years have been duly made
on timely basis or accrued in accordance with U.S. GAAP in all material respects. As of the date of this Agreement, there are
no claims (other than for benefits incurred in the ordinary course) or Actions pending, or, to the knowledge of the Company, threatened
against any Company Employee Plan or against the assets of any Company Employee Plan which, individually or in the aggregate,
would reasonably be expected to result in any liability that would be material to the Company or any of its Subsidiaries, taken
as a whole.
(e) Except
as expressly provided under this Agreement, neither the execution of this Agreement, shareholder approval of this Agreement, nor
the consummation of the Transactions (whether alone or in connection with any additional or subsequent events such as a termination
of employment), will (i) entitle any current or former director, employee or consultant of any Group Company to material compensation
in the form of a severance payment or similar payment, (ii) accelerate the time of payment or vesting or result in any payment
or funding of compensation or benefits under, increase the amount payable or result in any other obligation pursuant to, any of
the Company Employee Plans, (iii) increase any benefits otherwise payable under any of the Company Employee Plans, or (iv) limit
or restrict the right to merge, materially amend, terminate or transfer the assets of any Company Employee Plan following the
Effective Time, other than in the case of (i) and (ii), continued coverage under applicable Company Employee Plans for a specified
duration no longer than twelve months upon any resignation or termination following the consummation of the Transaction.
Section 3.12 Real
Property; Title to Assets.
(a) Section
3.12(a) of the Company Disclosure Schedule sets forth the address and description of each Owned Real Property, including, without
limitation, the particulars and the issue date of the State-owned Land Use Certificate and Building Ownership Certificate for
each Owned Real Property. With respect to each Owned Real Property: (i) the relevant Group Company has good and marketable indefeasible
and valid title to such Owned Real Property, free and clear of all Liens and encumbrances, except Permitted Encumbrances, (ii)
no Group Company has leased or otherwise granted to any person the right to use or occupy such Owned Real Property or any portion
thereof, (iii) there are no outstanding options, rights of first offer or rights of first refusal to purchase such Owned Real
Property or any portion thereof or interest therein. Except as set forth in Section 3.12(a) of the Company Disclosure Schedule,
as of the date of this Agreement, no Group Company is a party to any Contract which obligates it to purchase any real property
or interest therein.
(b) Section
3.12(b) of the Company Disclosure Schedule sets forth the address of each Leased Real Property and a true and complete list of
all current Leases in respect of such Leased Real Property (including the date of the Lease, the term and name of the parties
to such Lease). The Company has delivered or otherwise made available to Holdco (including through the Company SEC Reports and
the Data Room) a true and complete copy of each such Lease, and in the case of any oral Lease, a written summary of the material
terms of such Lease. Except as would not have a Company Material Adverse Effect, with respect to each Lease: (i) such Lease constitutes
a valid and legally binding obligation of the Company or its Subsidiaries, enforceable in accordance with its terms, subject to
the Bankruptcy and Equity Exception, and is in full force and effect, (ii) possession and quiet enjoyment of the Leased Real Property
under such Lease by the Company or its applicable Subsidiary has not been disturbed and, to the Company’s knowledge, there
are no disputes with respect to such Lease, and (iv) the Company or its applicable Subsidiary is not and, to the Company’s
knowledge, no other party to such Lease is, in breach or default under such Lease, and no event has occurred or circumstance exists
which, with the delivery of notice, the passage of time or both, would constitute such a breach or default, or permit the termination,
modification or acceleration of rent under such Lease.
(c) The
Owned Real Property identified in Section 3.12(a) of the Company Disclosure Schedule and the Leased Real Property identified in
Section 3.12(b) of the Company Disclosure Schedule comprise all of the real property used in carrying out the business of the
Group Companies as of the date hereof.
(d) To
the knowledge of the Company and except as would not have a Company Material Adverse Effect, (i) all buildings, structures, improvements,
fixtures, building systems and equipment, and all components thereof, included in the Owned Real Property or Leased Real Property
(the “Improvements”) are in good condition and repair and sufficient
for the operation of the business of the Group Companies, (ii) there are no structural deficiencies or latent defects affecting
any of the Improvements, and (iii) there are no facts or conditions affecting any of the Improvements which would interfere with
the use or occupancy of the Improvements or any portion thereof in the operation of the business of the Group Companies.
(e) With
respect to the underlying land of the Owned Real Property of the Group Companies: (i) the land-use right of such land was granted
to the land user by the relevant PRC land administration authority in accordance with PRC Law for a specified period of time;
(ii) the relevant Group Companies obtained the land-use rights to such land in compliance in all material respects with applicable
PRC Law; (iii) the use, transfer, lease and mortgage of the land-use rights to such land are not subject to any material restrictions
within its approved purpose; (iv) the relevant Group Companies entered into land-use right grant contracts with the relevant land
administration authorities in obtaining the land; and (v) all land-use right grant fees and other material fees required to be
paid in connection with obtaining the land have been duly and fully paid by such Group Companies in accordance with PRC Law.
Section 3.13 Intellectual
Property.
Except as would
not have a Company Material Adverse Effect:
(a) with
respect to each item of Intellectual Property owned by any Group Company (“Company
Owned Intellectual Property”):
(i) such
Group Company is the owner of the entire right, title and interest in and to such Company Owned Intellectual Property free and
clear of all Liens (other than Permitted Encumbrances);
(ii) the
Company Owned Intellectual Property is valid and enforceable, and has not been adjudged invalid or unenforceable in whole or in
part; and
(iii) to
the knowledge of the Company, no Person is engaging in any activity that infringes upon the Company Owned Intellectual Property;
(b) with
respect to each item of Intellectual Property licensed to any Group Company that is material to the business, financial condition
or results of operations of the Group Companies taken as a whole (“Company Licensed
Intellectual Property”), such Group Company has the right to use such Company Licensed Intellectual Property
in the continued operation of its respective business in accordance with the terms of the license agreement governing such Company
Licensed Intellectual Property;
(c) to
the knowledge of the Company, no written claim has been asserted to any Group Company that the conduct of the business of any
Group Company as currently conducted infringes upon or misappropriates any Intellectual Property rights of any third party;
(d) there
are no pending or, to the knowledge of the Company, threatened Actions by any person alleging infringement, dilution, unauthorized
disclosure, or misappropriation by any Group Company of the Intellectual Property rights of such Person, demands or unsolicited
offers to license any Intellectual Property, or challenges to the validity, enforceability or ownership of, or the right to use,
any Intellectual Property owned by the Group Companies;
(e) all
registrations with and applications to any Governmental Authority in respect of the Company Owned Intellectual Property and the
licenses of the Company Licensed Intellectual Property necessary for the protection of such Intellectual Property under applicable
Laws have been made, are valid and in full force and effect;
(f) neither
the execution of this Agreement nor the consummation of any Transaction will adversely affect any Group Company’s rights
with respect to any Company Owned Intellectual Property or Company Licensed Intellectual Property; and
(g) to
the knowledge of the Company, no third party is currently infringing, diluting or misappropriating any Company
Owned Intellectual Property.
Section 3.14 Taxes.
(a) Each
Group Company has timely and duly filed all material Tax returns and reports required to be filed by it and has paid and discharged
all material Taxes required to be paid or discharged, other than such payments as are being contested in good faith by appropriate
proceedings, and where payment is not yet due, except as would not, in individually or in the aggregate, have a Company Material
Adverse Effect, each Group Company has made adequate provision for all material Taxes in its financial statements in accordance
with U.S. GAAP. All such Tax returns are true, accurate and complete in all material respects. No Governmental Authority is now
asserting or, to the knowledge of the Company, threatening to assert against any Group Company any material deficiency or claim
for any material Taxes or interest thereon or penalties in connection therewith. Each Group Company has properly and timely withheld,
collected and deposited all material Taxes that are required to be withheld, collected and deposited under applicable Law. No
Group Company has granted any waiver of any statute of limitations with respect to, or any extension of a period for the assessment
of, any material Tax. There are no material Tax liens upon any assets of any Group Company except liens for current Taxes not
yet due.
(b) Neither
the Company nor any of its Subsidiaries incorporated outside the PRC takes the position for tax purposes that it is a “resident
enterprise” of the PRC or tax resident in any jurisdiction other than its jurisdiction of formation.
(c) Each
Group Company has, in accordance with applicable Law, duly registered with the relevant Governmental Authority, obtained and maintained
the validity of all national and local tax registration certificates and complied in all material respects with all requirements
imposed by such Governmental Authorities. Each submission made by or on behalf of any Group Company to any Governmental Authority
in connection with obtaining Tax exemptions, Tax holidays, Tax deferrals, Tax incentives or other preferential Tax treatments
or Tax rebates was accurate and complete in all material respects.
(d) Each
Group Company has complied in all material respects with all applicable Tax Laws in respect of any value-added or similar Tax
on consumption including business Tax and withholding Tax on business Tax.
Section 3.15 No
Secured Creditors.
The Company does
not have any secured creditors holding a fixed or floating security interest.
Section 3.16 Material
Contracts.
(a) Except
for this Agreement and the Contracts filed as exhibits to the Company SEC Reports filed with the SEC prior to the date of this
Agreement or set forth in Section 3.16(a) of the Company Disclosure Schedule, none of the Company or its Subsidiaries is a party
to, nor any of the Company’s or its Subsidiaries’ properties or assets are bound by, any Contract under which such
Group Company has outstanding rights or obligations:
(i) that
would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange
Act;
(ii) relating
to any Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of any Group Company) in excess of US$850,000
(or an equivalent amount in RMB) individually, other than any Indebtedness solely between any Group Companies;
(iii) relating
to the formation, creation, operation, management or control of, a partnership, joint venture, strategic cooperation (including
cooperation or long-term agency contracts entered into at the corporate headquarters level with insurance companies), or similar
arrangement;
(iv) relating
to the purchase or sale of any shares or securities of, or other equity interests in, any Group Company, other than Company Share
Awards and the Company Convertible Notes;
(v) that
limits, or purport to limit, in any material respect, the ability of any Group Company to compete in any geographic area, industry
or line of business;
(vi) with
any directors or executive officers of the Company (or any immediate family member of the foregoing) or shareholders of the Company
holding more than 5% of the outstanding share capital of the Company, that involves an amount of payments which is material to
the Group Companies, taken as a whole, other than Company Employee Plans or Contracts granting Company Share Awards or relating
to services as employees, officers or directors of the Company;
(vii) that
are franchising, licensing or management Contracts covering at least three (3) hotels;
(viii) which
provide the other party the right to terminate such Contract as a result of this Agreement or the consummation of the transactions
where (A) such Contract requires any payment in excess of US$850,000 during the remainder of its term to be made by the Company
or any of its Subsidiaries or (B) the value of the outstanding receivables due to the Group Companies under such Contract is in
excess of US$850,000 during the remainder of its term; and
(ix) the
absence of which would have a Company Material Adverse Effect.
Each such Contract
described in clauses (i) to (ix), whether or not filed as an exhibit to the Company SEC Reports or disclosed in the Company Disclosure
Schedule, is referred to herein as a “Material Contract.”
(b) Except
as would not reasonably be expected to have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and
binding obligation of a Group Company, as applicable, in full force and effect and enforceable against the such Group Company
in accordance with its terms, subject to the Bankruptcy and Equity Exception; (ii) to the knowledge of the Company, each Material
Contract is a legal, valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against
such counterparty in accordance against such counterparty in accordance with its terms, subject to the Bankruptcy and Equity Exception;
(iii) no Group Company and, to the Company's knowledge, no counterparty, is or is alleged to be in breach or violation of, or
default under, any Material Contract; and (iv) no Group Company has received any written notice of termination or cancellation
under any such Material Contract. The Company has provided or otherwise made available to Holdco true and complete copies of each
Material Contracts, including any amendments thereto.
Section 3.17 Environmental
Matters.
Except as would
not reasonably be expected to have a Company Material Adverse Effect, (i) each Group Company is in compliance with all applicable
Environmental Laws and has obtained and possess all material permits, licenses and other authorizations currently required for
their establishment and their operation under any Environmental Law (the “Environmental Permits”), and all
such Environmental Permits are in full force and effect, (ii) to the knowledge of the Company, no property currently or formerly
owned or operated by any Group Company has been contaminated with or is releasing any Hazardous Substance in a manner that would
reasonably be expected to require remediation or other action pursuant to any Environmental Law, (iii) no Group Company has received
any notice, demand, letter, claim or request for information alleging that any Group Company is in violation of or liable under
any Environmental Law, which remains unresolved, and (iv) no Group Company is subject to any order, decree or injunction with
any Governmental Authority or agreement with any Third Party concerning liability under any Environmental Law or relating to Hazardous
Substances.
Section 3.18 Insurance.
The Group Companies
maintain insurance coverage with reputable insurers in such amounts and covering such risks as required under applicable Law or
as has been determined to be appropriate by the Company Board (taking into account the cost and availability of such insurance),
including, but not limited to, directors and officers insurance. Except as would not reasonably be expected to have a Company
Material Adverse Effect, (a) no Group Company has any reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue
its business without a significant increase in cost, (b) none of the Group Companies have received any written notice of any threatened
termination of, material premium increase with respect to, or material alteration of coverage under, any of its respective insurance
policies, and (c) none of the Group Companies have been denied any insurance coverage which it has sought or for which it has
applied.
Section 3.19 Interested
Party Transactions.
None of the officers
or directors of any Group Company is presently a party to any transaction with the Company or any of its Subsidiaries which would
be required to be reported under Item 404 of Regulation S-K of the SEC (other than for services as officers, directors and employees
of a Group Company), other than for (a) payment of salary or fees for services rendered in the capacity of an officer, director
or employee of the Company or any of its Subsidiaries), (b) reimbursement for expenses incurred on behalf of the Company or any
of its Subsidiaries and (c) other employee benefits, including Company Share Awards, in each case, in the ordinary course of business
and consistent with past practice.
Section 3.20 Anti-Takeover
Provisions.
The Company is
not party to a shareholder rights agreement, “poison pill” or similar agreement or plan. The Company Board has taken
all necessary action so that any takeover, anti-takeover, moratorium, “fair price”, “control share” or
other similar Law that may be applicable to the Company other than the CICL (each, a “Takeover
Statute”) does not, and will not, apply to this Agreement or the Transactions.
Section 3.21 Brokers.
Except for the
Financial Advisor, no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission
in connection with the Transactions based upon arrangements made by or on behalf of the Company.
Section 3.22 No
Other Representations or Warranties.
Except for the
representations and warranties made by the Company in Article III, neither the Company nor any other person on behalf of the Company
makes any other express or implied representation or warranty with respect to the Company or any of its Subsidiaries or their
respective business, operations, assets, liabilities, condition (financial or otherwise) or prospects or any information provided
to Holdco, Merger Sub or any of their respective Affiliates or Representatives, notwithstanding the delivery or disclosure to
Holdco, Merger Sub or any of their respective Affiliates or Representatives of any documentation, forecasts or other information
in connection with the Transactions, and each of Holdco and Merger Sub acknowledges the foregoing. Neither the Company nor
any other person on behalf of the Company will have or be subject to any liability or indemnity obligations to Holdco, Merger
Sub or any other person resulting from the distribution or disclosure or failure to distribute or disclose to Holdco, Merger Sub
or any of their respective Affiliates or Representatives, or their use of, any information, unless and to the extent such information
is expressly included in the representations and warranties contained in Article III.
Article
IV
REPRESENTATIONS
AND WARRANTIES OF HOLDCO AND MERGER SUB
Except as disclosed
in the Holdco Disclosure Schedule (it being understood that any information set forth in one section or subsection of the Holdco
Disclosure Schedule shall be deemed to apply and qualify the section or subsection of this Agreement to which it corresponds in
number and each other section or subsection of this Agreement to the extent that it is reasonably apparent that such information
is relevant to such other section or subsection), Holdco and Merger Sub hereby, jointly and severally, represent and warrant to
the Company that:
Section 4.01 Corporate
Organization.
Holdco is a company
duly incorporated, validly existing and in good standing under the laws of the Hong Kong Special Administrative Region. Merger
Sub is an exempted company duly incorporated, validly existing and in good standing under the laws of the Cayman Islands. Each
of Holdco and Merger Sub has the requisite corporate power and authority and all necessary governmental approvals to own, lease
and operate its properties and to carry on its business as it is now being conducted, in each case except where the failure to
be so organized, existing or in good standing or to have such power, authority and governmental approvals would not, individually
or in the aggregate, prevent or materially delay consummation of any of the Transactions by Holdco or Merger Sub or otherwise
be materially adverse to the ability of Holdco or Merger Sub to perform their material obligations under this Agreement.
Section 4.02 Capitalization
of Holdco and Merger Sub; No Prior Activities.
(a) Holdco
was formed solely for the purpose of engaging in the Transactions and is wholly owned by Parent, and Holdco has not conducted
any business prior to the date hereof and has no, and prior to the Effective Time, will have no, assets, liabilities or obligations
of any nature other than in connection with the arrangement of the Debt Financing and those incident to its formation and capitalization
pursuant to this Agreement and the Transactions.
(b) As
of the date hereof, the authorized share capital of Merger Sub consists solely of 100,000,000 ordinary shares, par value US$0.0005
per share, of which one share is validly issued and outstanding. All of the issued and outstanding share capital of Merger Sub
is, and immediately prior to the Effective Time will be, owned by Holdco. Merger Sub was formed solely for the purpose of engaging
in the Transactions, and it has not conducted any business prior to the date hereof and has no, and prior to the Effective Time,
will have no, assets, liabilities or obligations of any nature other than in connection with the arrangement of the Debt Financing
and those incident to its formation and capitalization pursuant to this Agreement and the Transactions.
Section 4.03 Authority
Relative to This Agreement.
Each of Holdco
and Merger Sub has all necessary corporate power and authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the Transactions. The execution and delivery of this Agreement by Holdco and Merger Sub and, subject
to the affirmative vote of the holders of shares of Parent representing at least two-thirds of the total outstanding shares of
Parent present and voting in person or by proxy (excluding any shares of Parent held directly or indirectly by Beijing Tourism
Group Co., Ltd.) at a shareholders’ meeting of Parent (the “Parent Shareholders Meeting”) in favor of
the Transactions (the “Parent Shareholder Approval”), the consummation
by Holdco and Merger Sub of the Transactions have been duly and validly authorized by all necessary corporate action, and no other
corporate proceedings on the part of Holdco or Merger Sub are necessary to authorize this Agreement or to consummate the Transactions
(other than the filings, notifications and other obligations and actions described in Section 4.04(b)). This Agreement has been
duly and validly executed and delivered by Holdco and Merger Sub and, assuming due authorization, execution and delivery by the
Company, constitutes a legal, valid and binding obligation of each of Holdco and Merger Sub, enforceable against each of Holdco
and Merger Sub in accordance with its terms, subject to the Bankruptcy and Equity Exception.
Section 4.04 No
Conflict; Required Filings and Consents.
(a) The
execution and delivery of this Agreement by Holdco and Merger Sub do not, and the performance of this Agreement by Holdco and
Merger Sub will not, (i) conflict with or violate the memorandum and articles of association of either Holdco or Merger Sub,
(ii) assuming that all consents, approvals, authorizations and other actions described in Section 4.04(b) have been obtained
and all filings and obligations described in Section 4.04(b) have been made, conflict with or violate any Law applicable to Holdco
or Merger Sub or by which any property or asset of either of them is bound or affected, or (iii) result in any breach 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 or other encumbrance
on any property or asset of Holdco or Merger Sub pursuant to, any Contract or obligation to which Holdco or Merger Sub is a party
or by which Holdco or Merger Sub or any property or asset of either of them is bound or affected, except, with respect to clauses
(ii) and (iii), for any such conflicts, violations, breaches, defaults or other occurrences which would not, individually or in
the aggregate, prevent or materially delay consummation of any of the Transactions by Holdco or Merger Sub or otherwise be materially
adverse to the ability of Holdco and Merger Sub to perform their material obligations under this Agreement.
(b) The
execution and delivery of this Agreement by Holdco and Merger Sub do not, and the performance of this Agreement by Holdco and
Merger Sub and the consummation by Holdco and Merger Sub of the Transactions will not, require any consent, approval, authorization
or permit of, or filing with or notification to, any Governmental Authority, except (i) for the filings and/or notices pursuant
to Section 13 of the Exchange Act and the rules and regulations thereunder, (ii) for compliance with the rules and regulations
of Nasdaq, (iii) for the filing of the Plan of Merger and related documentation with the Registrar of Companies of the Cayman
Islands pursuant to the CICL and the publication of notification of the Merger in the Cayman Islands Government Gazette and (iv)
for the Requisite Regulatory Approvals.
(c) Merger
Sub has no secured creditors holding a fixed or floating security interest.
Section 4.05 Financing.
(a) Holdco
has delivered to the Company a true and complete copy of an executed commitment letter from the financial institution named therein
(as the same may be amended or modified pursuant to Section 6.07, the “Debt Commitment
Letter”), confirming their respective commitments, subject to the terms and conditions therein, to provide or
cause to be provided the debt amounts set forth therein for the purpose of financing the Transactions (the “Debt
Financing” and, the financial institution providing the Debt Financing or any Alternative Financing, the “Debt
Financing Sources”).
(b) As
of the date hereof, the Debt Commitment Letter is in full force and effect and is a legal, valid and binding obligation of Holdco
and, to the knowledge of Holdco, the other parties thereto (in each case, subject to the Bankruptcy and Equity Exception), (ii)
other than as permitted by Section 6.07 or this Section 4.05, the Debt Commitment Letter has not been amended or modified and
no such amendment or modification is contemplated, (iii) the commitments contained in the Debt Commitment Letter have not been
withdrawn, terminated or rescinded in any respect and, to the knowledge of Holdco, no such withdrawal, termination or rescission
is contemplated and (iv) no event has occurred that (with or without notice, lapse of time, or both) would constitute a breach
or default under the Debt Commitment Letter on the part of Holdco or Merger Sub and, to the knowledge of Holdco, any other parties
thereto. Assuming (A) the Debt Financing is funded in accordance with the Debt Commitment Letter, and (B) the satisfaction of
the conditions to the obligation of Holdco and Merger Sub to consummate the Merger as set forth in Sections 7.01 and Section 7.02
or the waiver of such conditions, as of the date hereof, the proceeds contemplated by the Debt Commitment Letter will be sufficient
for Holdco and the Surviving Company to pay (1) the Merger Consideration and (2) any other amounts required to be paid in
connection with the consummation of the Transactions upon the terms and conditions contemplated hereby and all related fees and
expenses associated therewith. The Debt Commitment Letter contains all of the conditions precedent to the obligations of the parties
thereunder to make the Debt Financing available to Holdco or Merger Sub on the terms and conditions therein. As of the date of
this Agreement, subject to the accuracy of the representations and warranties of the Company set forth in Article III hereof and
the satisfaction of the conditions set forth in Section 7.01, Section 7.02 and Section 7.03 hereof, Holdco and Merger Sub do not
have any reason to believe that any of the conditions of the Debt Financing will not be satisfied or that the Debt Financing will
not be available to Holdco and Merger Sub at the time required to consummate the Transactions. Holdco and Merger Sub have fully
paid any and all commitment fees or other fees that have been incurred and are due and payable in connection with the Debt Commitment
Letter prior to or in connection with the execution of this Agreement, and will pay when due all other fees arising under the
Debt Commitment Letter as and when they become due and payable thereunder. There are no side letters or other oral or written
Contracts to which any of the Buyer Group Parties or any of their respective Affiliates is a party related to the funding, as
applicable, of the full amount of the Debt Financing other than (i) the Debt Commitment Letter, (ii) customary fee letters
relating to the Debt Financing and (iii) any customary engagement letter(s) and non-disclosure agreement(s) with the providers
of the Debt Financing that do not impact the conditionality or amount of the Debt Financing.
Section 4.06 Brokers.
Except for Huatai
United Securities Co., Ltd., CITIC Securities Co., Ltd. and UBS AG Hong Kong Branch, no broker, finder or investment banker is
entitled to any brokerage, finder’s or other fee or commission in connection with the Transactions based upon arrangements
made by or on behalf of any of the Buyer Group Parties.
Section 4.07 Absence
of Litigation.
As of the date
hereof, (i) there is no Action pending or, to the knowledge of Holdco and Merger Sub, threatened against any of Parent, Holdco
or Merger Sub or any of their respective Affiliates (excluding the Company and any of its Subsidiaries), and (ii) to the knowledge
of Holdco and Merger Sub, there is no Action pending or threatened against any of the Rollover Shareholders and their respective
Affiliates (excluding the Company and any of its Subsidiaries), in each case, other than any such Action that would not reasonably
be expected, individually or in the aggregate, to prevent or materially impair the consummation of the Transactions. None of Parent,
Holdco, Merger Sub or any of their respective Affiliates (excluding the Company and any of its Subsidiaries), nor, to the knowledge
of Holdco and Merger Sub, any of the Rollover Shareholders or any of their respective Affiliates (excluding the Company and any
of its Subsidiaries), is subject to any continuing order of, consent decree, settlement agreement or other similar written agreement
with, or, to the knowledge of Holdco and Merger Sub, 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 Transactions.
Section 4.08 Certain
Actions.
As of the date
of this Agreement, except as otherwise disclosed in Section 4.08 of the Holdco Disclosure Schedule, there are no Contracts (whether
oral or written) (i) between any of the Buyer Group Parties or any of their respective Affiliates, on the one hand, and any member
of the Company’s management or director (including another of the Buyer Group Parties), on the other hand, that relate in
any way to the Transactions; (ii) pursuant to which any shareholder of the Company would be entitled to receive consideration
of a different amount or nature than the Merger Consideration, or (iii) pursuant to which any shareholder of the Company has agreed
to vote to approve this Agreement, the Plan of Merger or the Merger or has agreed to vote against any Competing Transaction or
Superior Proposal.
Section 4.09 Buyer
Group Contracts.
Holdco has delivered
to the Company a true, correct and complete copy of each of the Buyer Group Contracts, each of which is listed in Section 4.09
of the Holdco Disclosure Schedule. Other than Buyer Group Contracts, except as entered into with the prior written consent of
the Special Committee, there are no side letters or other oral or written Contracts relating to the Transactions (including the
obligations of the parties to the Support Agreement related to the Shares held by the Rollover Shareholders) between or among
any of the Buyer Group Parties.
Section 4.10 Ownership
of Shares.
As of the date
of this Agreement, other than the Shares held by the Rollover Shareholders, the Company Share Awards granted by the Company Board
to the Rollover Shareholders and except as otherwise disclosed in Section 4.10 of the Holdco Disclosure Schedule, none of Holdco,
Merger Sub or any of the Rollover Shareholders beneficially owns (as such term is used in Rule 13d-3 promulgated under the Exchange
Act) any Shares or other securities of, or any other economic interest (through derivative securities or otherwise) in the Company,
or any options, warrants or other rights to acquire Shares or other securities of, or any other economic interest (through derivative
securities or otherwise) in, the Company.
Section 4.11 Support
Agreement.
Holdco has delivered
to the Company a true, complete and correct copy of the Support Agreement, pursuant to which the parties thereto have agreed,
among other things, upon the terms and subject to the terms therein, (i) to vote all of the Shares owned by them at the time
of the Company Shareholders’ Meeting in favor of the Merger Agreement, the Plan of Merger and the Transactions, (ii) to
receive no cash consideration (including any Per Share Merger Consideration or Per ADS Merger Consideration) with respect to their
respective Rollover Shares in the Merger in accordance with this Agreement, and (iii) that all of the Rollover Shares shall be
converted into ordinary shares of the Surviving Company at the Effective Time. The Support Agreement contains all of the conditions
precedent to the obligations of the parties thereto to cause the Rollover Shareholders to hold their respective Rollover Shares,
if any, through the Effective Time, receive no cash consideration for their Rollover Shares in the Merger and have such Rollover
Shares be converted into ordinary shares of the Surviving Company at the Effective Time. The Support Agreement is in full force
and effect as of the date of this Agreement and constitutes legal, valid and binding obligations of each of the parties thereto.
Section 4.12 Solvency.
Neither Holdco
nor Merger Sub is entering into the Transactions with the intent to hinder, delay or defraud either present or future creditors.
Immediately after giving effect to the Transactions, including the Debt Financing (and any Alternative Financing, if applicable)
and the payment of the Merger Consideration and any other amounts required to be paid in connection with the consummation of the
Transactions, including the payment of all related fees and expenses, assuming (i) satisfaction of the conditions to be obligation
of Holdco and Merger Sub to consummate the Merger as set forth herein, or the waiver of such conditions, and (ii) the accuracy
of the representations and warranties of the Company set forth in Article III (for such purposes, the representations and warranties
that are qualified as to materiality or “Company Material Adverse Effect” or other words of similar import shall be
true and correct in all respects and those not so qualified shall be true and correct in all material respects), the Surviving
Company will be solvent at and immediately after the Effective Time, as such term is used under the Laws of the Cayman Islands.
Section 4.13 Non-Reliance
on Company Estimates.
The Company has
made available to Holdco, Merger Sub, Parent or their respective Representatives, and may continue to make available, certain
estimates, projections and other forecasts for the business of the Company and its Subsidiaries and certain plan and budget information.
Each of Holdco and Merger Sub hereby acknowledges and agrees that (a) these estimates, projections, forecasts, plans and budgets
and the assumptions on which they are based were prepared for specific purposes and may vary significantly from each other, (b)
there are uncertainties inherent in attempting to make such estimates, projections, forecasts, plans and budgets, (c) Holdco and
Merger Sub are taking full responsibility for making their own evaluation of the adequacy and accuracy of all estimates, projections,
forecasts, plans and budgets so furnished to them (including the reasonableness of the assumptions underlying such estimates,
projections, forecasts, plans or budgets), and (d) neither Holdco nor Merger Sub is relying on any estimates, projections, forecasts,
plans or budgets furnished by the Company, its Subsidiaries or their respective Affiliates and Representatives, and neither Holdco
nor Merger Sub shall, and shall cause their respective Affiliates and Representatives not to, hold any such person liable with
respect thereto; provided that, nothing contained in this Section 4.13 shall be deemed to limit in any way the representations
and warranties of the Company set forth in this Agreement.
Section 4.14 Independent
Investigation.
Holdco and Merger
Sub have conducted their own independent investigation, review and analysis of the business, operations, assets, liabilities,
results of operations, financial condition and prospects of the Company and its subsidiaries, which investigation, review and
analysis was performed by Holdco, Merger Sub, their respective Affiliates and Representatives. Each of Holdco and Merger Sub acknowledges
that, as of the date of this Agreement, it, its Affiliates and their respective Representatives have been provided sufficient
access to the personnel, properties, facilities and records of the Company and its Subsidiaries for such purpose. In entering
into this Agreement, each of Holdco and Merger Sub acknowledges that it has relied solely upon the aforementioned investigation,
review and analysis and not on any statements, representations or opinions of any of the Company, its affiliates or their respective
Representatives (except the representations and warranties of the Company set forth in this Agreement and in any certificate delivered
pursuant to this Agreement).
Section 4.15 No
Other Representations or Warranties.
Except for the
representations and warranties made by Holdco and Merger Sub in Article IV, neither Holdco nor Merger Sub nor any other person
on behalf of Holdco or Merger Sub makes any other express or implied representation or warranty with respect to Holdco or Merger
Sub or any of their respective Subsidiaries or their respective business, operations, assets, liabilities, condition (financial
or otherwise) or prospects or any information provided to the Company or any of its Affiliates or Representatives, notwithstanding
the delivery or disclosure to the Company or any of its Affiliates or Representatives of any documentation, forecasts or other
information in connection with the Transactions, and the Company acknowledges the foregoing. Neither Holdco nor Merger Sub
nor any other person on behalf of Holdco or Merger Sub will have or be subject to any liability or indemnity obligations to the
Company or any other person resulting from the distribution or disclosure or failure to distribute or disclose to the Company
or any of its Affiliates or Representatives, or its use of, any information, unless and to the extent such information is expressly
included in the representations and warranties contained in Article IV.
Article
V
CONDUCT
OF BUSINESS PENDING THE MERGER
Section 5.01 Conduct
of Business by the Company Pending the Merger.
The Company agrees
that, from the date of this Agreement until the Effective Time, except as (x) required by applicable Law, (y) set forth in Section
5.01 of the Company Disclosure Schedule or (z) as expressly contemplated or permitted by any other provision of this Agreement,
unless Holdco shall otherwise consent in writing (which consent shall not be unreasonably withheld, delayed or conditioned), (i)
the businesses of the Group Companies shall only be conducted, and the Group Companies shall not take any action except, in a
lawfully permitted manner in the ordinary course of business and consistent with past practice; and (ii) the Company shall use
its commercially reasonable efforts to preserve the assets and the business organization of the Group Companies in all material
respects, to keep available the services of the current officers and key employees of the Group Companies and to maintain in all
material respects the current relationships of the Group Companies with existing customers and other persons with which any Group
Companies has material business relations as of the date hereof.
By way of amplification
and not limitation, until the earlier of the Effective Time and termination of this Agreement pursuant to Article VIII, except
as (x) required by applicable Law, (y) set forth in Section 5.01 of the Company Disclosure Schedule or (z) expressly contemplated
or permitted by any other provision of this Agreement, the Company shall not and shall not permit any other Group Company to,
directly or indirectly, do or propose to do any of the following without the prior written consent of Holdco (which consent shall
not be unreasonably withheld, delayed or conditioned):
(a) amend
or otherwise change its memorandum and articles of association or equivalent organizational documents;
(b) issue,
sell, transfer, lease, sublease, license, pledge, dispose of, grant or encumber, or authorize the issuance, sale, transfer, lease,
sublease, license, pledge, disposition, grant or encumbrance of, (i) any shares of any class of shares of any Group Company
(other than in connection with (A) the exercise of any Company Options in accordance with the Share Incentive Plan, (B) the withholding
of Company securities to satisfy tax obligations with respect to Company Share Awards, (C) the acquisition by the Company of its
securities in connection with the forfeiture of Company Share Awards, or (D) the acquisition by the Company of its securities
in connection with the net exercise of Company Options in accordance with the terms thereof), or (ii) any property or assets (whether
real, personal or mixed, and including leasehold interests and intangible property) of any Group Company with a value or purchase
price (including the value of assumed liabilities) in excess of US$3,000,000 (or an equivalent amount in RMB), except in the ordinary
course of business;
(c) declare,
set aside, make or pay any dividend or other distribution, payable in cash, shares, property or otherwise, with respect to any
of its shares (other than dividends or other distributions from any Subsidiary of the Company to the Company or any of its other
Subsidiaries consistent with past practice);
(d) reclassify,
combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its shares, or any options,
warrants, convertible securities or other rights exchangeable into or convertible or exercisable for any of its shares (other
than the purchase of Shares to satisfy obligations under the Share Incentive Plan, including the withholding of Company securities
to satisfy tax obligations with respect to Company Share Awards, the acquisition by the Company of its securities in connection
with the forfeiture of Company Share Awards, or the acquisition by the Company of its securities in connection with the net exercise
of Company Options in accordance with the terms thereof);
(e) effect
or commence any liquidation, dissolution, scheme of arrangement, merger, consolidation, amalgamation, restructuring, reorganization
or similar transaction involving any Group Company, or create any new Subsidiary that is incorporated outside PRC;
(f) acquire
(including, without limitation, by merger, consolidation, scheme of arrangement, amalgamation or acquisition of stock or assets
or any other business combination) any assets, securities or properties, in aggregate, with a value or purchase price (including
the value of assumed liabilities) in excess of US$3,000,000 (or an equivalent amount in RMB) in any transaction or related series
of transactions, except in the ordinary course of business;
(g) other
than expenditures necessary to maintain assets in good repair consistent with the past practice or pursuant to the Company’s
operating plan in effect as of the date hereof, authorize, or make any commitment with respect to, any single capital expenditure
which is in excess of US$3,000,000 (or an equivalent amount in RMB) or capital expenditures which are, in the aggregate, in excess
of the amount set forth in Section 5.01(g) of the Company Disclosure Schedule for the Group Companies taken as a whole;
(h) incur,
any Indebtedness or issue any debt securities except for (i) the incurrence or guarantee of Indebtedness under any Group Company’s
existing credit facilities as in effect on the date hereof in an aggregate amount not to exceed the maximum amount authorized
under the Contracts evidencing such Indebtedness (including any renewal, extension, refinancing or replacement of such Contracts
on substantially the same or similar terms), and (ii) the incurrence of new Indebtedness in an aggregate amount not in excess
of US$3,000,000 (or an equivalent amount in RMB);
(i) except
as otherwise required by Law or pursuant to any Company Employee Plan, (i) enter into any new employment or compensatory agreements
(including the renewal of any such agreements), or terminate any such agreements, with any director, officer, employee or consultant
of any Group Company other than the hiring or termination of employees or consultants below the vice president level or its equivalent
or with an annual compensation of less than US$200,000 (or an equivalent amount in RMB), (ii) grant or provide any severance
or termination payments or benefits to any director or officer of any Group Company except as required by applicable Law, (iii)
increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus to, any director or officer
of any Group Company except such increases of compensation, bonus or pension, welfare, severance or other benefits of, or payment
of any bonuses to, any director or officer of any Group Company made in accordance with past practice, (iv) make any new equity
awards to any director, officer or employee of any Group Company, (v) establish, adopt, amend or terminate any Company Employee
Plan or materially amend the terms of any outstanding Company Share Awards, (vi) take any action to accelerate the vesting of
Company Share Awards, or (vii) forgive any loans to directors, officers or employees of any Group Company;
(j) issue
or grant any Company Share Award to any person;
(k) make
any material changes with respect to financial accounting principles, policies and procedures, except as required by changes in
statutory or regulatory accounting rules or U.S. GAAP or regulatory requirements with respect thereto;
(l) enter
into, amend, modify, consent to the termination of, or waive any material rights under, any Material Contract (or any Contract
that would be a Material Contract if such Contract had been entered into prior to the date hereof) that calls for annual aggregate
payments of US$3,000,000 or more which cannot be terminated without material surviving obligations or material penalty upon notice
of ninety (90) days or less;
(m) enter
into any Contract between a Group Company, on the one hand, and any of its Affiliates (other than the Group Companies), officers,
directors or employees, on the other hand, except for Contracts permitted under Section 5.01(i);
(n) terminate
or cancel, let lapse, or amend or modify in any material respect, other than renewals in the ordinary course of business, any
material insurance policies maintained by it which is not promptly replaced by a comparable amount of insurance coverage;
(o) settle
any Action other than any settlement permitted under Section 5.01(o) of the Company Disclosure Schedule;
(p) permit
any item of Company Owned Intellectual Property to lapse or to be abandoned, dedicated or disclaimed, or fail to perform or make
any applicable filings, recordings or other similar actions or filings, or fail to pay all required fees and taxes required or
advisable to maintain and protect its interest in each and every item of Company Owned Intellectual Property;
(q) fail
to make in a timely manner any filings or registrations with the SEC required under the Securities Act or the Exchange Act;
(r) enter
into, or propose to enter into, any transaction involving any earn-out or similar payment payable by any Group Company to any
Third Party, other than payments in connection with purchases of vehicles, plant, equipment, supplies or computers in the ordinary
course of business;
(s) engage
in the conduct of any new line of business material to the Company and its Subsidiaries, taken as a whole;
(t) make
or change any material Tax election, materially amend any Tax return (except as required by applicable Law), enter into any material
closing agreement with respect to Taxes, surrender any right to claim a material refund of Taxes, settle or finally resolve any
material controversy with respect to Taxes or materially change any method of Tax accounting (except as required by applicable
Law); or
(u) announce
an intention, enter into any formal or informal agreement or otherwise make a commitment, to do any of the foregoing.
Article
VI
ADDITIONAL
AGREEMENTS
Section 6.01 Proxy
Statement and Schedule 13E-3.
(a) Promptly
following the date of this Agreement, the Company, with the assistance of Holdco and Merger Sub, shall prepare and cause to be
filed with the SEC a proxy statement, including notice of the Company Shareholders’ Meeting, relating to the authorization
and approval of this Agreement, the Plan of Merger and the Transactions by the shareholders of the Company (such proxy statement,
as amended or supplemented, being referred to herein as the “Proxy Statement”). Concurrently with the preparation
of the Proxy Statement, the Company, Holdco and Merger Sub shall jointly prepare and cause to be filed with the SEC a Schedule 13E-3.
Each of the Company, Holdco and Merger Sub shall use its reasonable best efforts so that the Schedule 13E-3 will comply as to
form in all material respects with the requirements of the Exchange Act and the rules and regulations promulgated thereunder.
Each of the Company, Holdco and Merger Sub shall use its reasonable best efforts to respond promptly to any comments of the SEC
with respect to the Proxy Statement and Schedule 13E-3. Each of the Company, Holdco and Merger Sub shall furnish all information
concerning such party to the others as may be reasonably requested in connection with the preparation, filing and distribution
of the Proxy Statement and Schedule 13E-3 and the resolution of comments with respect thereto from the SEC. The Company shall
promptly notify Holdco and Merger Sub upon the receipt of any comments from the SEC or its staff or any request from the SEC or
its staff for amendments or supplements to the Proxy Statement and Schedule 13E-3 and shall provide Holdco with copies of all
correspondence between it and its representatives, on the one hand, and the SEC and its staff, on the other hand. Prior to filing
Schedule 13E-3 (or any amendment or supplement thereto) or mailing the Proxy Statement (or any amendment or supplement thereto)
or responding to any comments of the SEC with respect thereto, the Company (i) shall provide Holdco and Merger Sub with a reasonable
period of time to review and comment on such document or response, and (ii) shall consider in good faith all comments reasonably
proposed by Holdco and Merger Sub. If at any time prior to the Company Shareholders’ Meeting, any information relating to
the Company, Holdco, Merger Sub or any of their respective Affiliates, officers or directors, is discovered by the Company, Holdco
or Merger Sub which should be set forth in an amendment or supplement to the Proxy Statement and Schedule 13E-3 so that the Proxy
Statement and Schedule 13E-3 shall not contain any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are
made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and the Company
shall file an appropriate amendment or supplement describing such information with the SEC and, to the extent required by applicable
Law, disseminate to the shareholders of the Company.
(b) Holdco
represents and covenants that the information supplied by Holdco for inclusion in the Proxy Statement and Schedule 13E-3 will
not, at (i) the time the Proxy Statement and 13E-3 (or any amendment thereof or supplement thereto) are filed with the SEC, (ii)
the time the Proxy Statement and Schedule 13E-3 (or any amendment thereof or supplement thereto) are first mailed to the shareholders
of the Company, and (iii) the time of the Company Shareholders’ Meeting, contain any untrue statement of a material
fact or fail to state any material fact required to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(c) The
Company represents and covenants that the information supplied by the Company for inclusion in the Proxy Statement and Schedule
13E-3 will not, at (i) the time the Proxy Statement and Schedule 13E-3 (or any amendment thereof or supplement thereto) are filed
with the SEC, (ii) the time the Proxy Statement and Schedule 13E-3 (or any amendment thereof or supplement thereto) are first
mailed to the shareholders of the Company, and (iii) the time of the Company Shareholders’ Meeting, contain any untrue statement
of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading.
(d) Each
of the Company, Holdco and Merger Sub shall ensure that all documents that it is responsible for filing with and/or furnishing
to the SEC in connection with any of the Transactions will comply as to form and substance in all material respects with the applicable
requirements of the Securities Act, the Exchange Act and the rules and regulations promulgated thereunder, other than with respect
to any information supplied by the other parties.
(e) For
the avoidance of doubt and notwithstanding anything herein to the contrary, in connection with any disclosure regarding a Change
in the Company Recommendation made pursuant to the terms of this Agreement, the Company shall not be required to provide Holdco
or Merger Sub the opportunity to review or comment on (or include comments proposed by Holdco or Merger Sub in) the Schedule 13E-3
or the Proxy Statement, or any amendment or supplement thereto, or any comments thereon or any other filing by the Company with
the SEC, with respect to such disclosure.
Section 6.02 Shareholders’
Meetings.
(a) The
Company shall, promptly after the SEC confirms that it has no further comments on the Schedule 13E-3, (i) establish a record date
for determining shareholders of the Company entitled to vote at the shareholders’ meeting, (ii) with the assistance of Holdco
and Merger Sub, prepare and mail or cause to be mailed or otherwise disseminate the Proxy Statement to the holders of Shares (and
concurrently furnish the Proxy Statement under Form 6-K to the SEC), including Shares represented by ADSs, as of the record date
established for the shareholders’ meeting (the “Company Shareholders’ Meeting”),
for the purpose of voting upon the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including
the Merger, and (iii) instruct or otherwise cause the Depositary to (A) fix the record date established by the Company for the
Company Shareholders’ Meeting as the record date for determining the holders of ADSs who shall be entitled to give instructions
for the exercise of the voting rights pertaining to the Shares represented by ADSs (the “Record
ADS Holders”), (B) provide all proxy solicitation materials to all Record ADS Holders, and (C) vote all Shares
represented by ADSs in accordance with the instructions of such corresponding Record ADS Holders. Without the consent of Holdco,
authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, shall be the only
matter (other than procedural matters) to be proposed to be acted upon by the shareholders of the Company at the Company Shareholders’
Meeting.
(b) Subject
to this Section 6.02, Section 6.04(d) and Section 6.04(e), the Company Board shall recommend to holders of the Shares that they
authorize and approve this Agreement, the Plan of Merger and approve the Merger, and shall include such recommendation in the
Proxy Statement. Without limiting the generality of the foregoing sentence, the Company agrees that, unless this Agreement is
validly terminated in accordance with Article VIII hereof, its obligations pursuant to this Section 6.02 (including, without limitation,
its obligations to call, give notice of, convene and hold the Company Shareholders’ Meeting and to solicit from its shareholders
proxies, in each case, in accordance with this Section 6.02) shall not be affected by the commencement, public proposal, public
disclosure, announcement, communication or submission to the Company or any other person of any Competing Transaction, or by any
Change in the Company Recommendation. The Company shall use its reasonable best efforts to solicit from its shareholders proxies
in relation to the Company Shareholders’ Meeting.
(c) At
the Company Shareholders’ Meeting, Holdco shall cause to be voted all of the Shares or ADSs, if any, over which Holdco,
Merger Sub or Parent otherwise has, directly or indirectly, voting power through enforcement of the Support Agreement (subject
to the terms and conditions therein) in favor of the authorization and approval of this Agreement, the Plan of Merger, and the
Transactions, including the Merger. For the avoidance of doubt, Holdco shall not be obligated to cause such Shares or ADSs to
be voted in the event that the Support Agreement shall have been terminated pursuant to the terms therein.
(d) The
Company shall duly convene and hold the Company Shareholders’ Meeting as soon as reasonably practicable following the mailing
of the Proxy Statement, unless this Agreement is validly terminated in accordance with Article VIII hereof, but in no event earlier
than the later of (i) the date on which the Parent Shareholder Approval has been obtained and (ii) the date on which the Requisite
Regulatory Approvals have been obtained. Notwithstanding Section 6.02(b), after consultation in good faith with Holdco, the Company
may recommend the adjournment of the Company Shareholders’ Meeting to its shareholders (i) to the extent necessary to ensure
that any required supplement or amendment to the Proxy Statement is provided to the holders of Shares within a reasonable amount
of time in advance of the Company Shareholders’ Meeting, (ii) as otherwise required by applicable Law, or (iii) if as of
the time for which the Company Shareholders’ Meeting is scheduled as set forth in the Proxy Statement, there are insufficient
Shares represented (in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Shareholders’
Meeting. If the Company Shareholders’ Meeting is adjourned, unless this Agreement is validly terminated in accordance with
Article VIII hereof, the Company shall convene and hold the Company Shareholders’ Meeting as soon as reasonably practicable
thereafter.
(e) Parent
shall (i) establish a record date for determining shareholders of Parent entitled to vote at the Parent Shareholders Meeting for
the purpose of voting upon the authorization and approval of this Agreement and the Transactions, including the Merger, as well
as any other necessary actions by Parent to consummate the Transactions, including the Merger, and (ii) as promptly as practicable
after the date of this Agreement, prepare, file and circulate all necessary announcements, filings, notices and documents in connection
with the Parent Shareholders Meeting, which documents shall (x) include the authorization and approval of this Agreement and the
Transactions, including the Merger, as well as any other necessary actions by Parent to consummate the Transactions, including
the Merger, as an agenda for such meeting and (y) comply in all material respects with applicable Laws. Parent shall take
all actions reasonably necessary or advisable to duly convene and hold the Parent Shareholders Meeting as soon as reasonably practicable
following the receipt of the approval by the State-owned Assets Supervision and Administration Commission of the Beijing Municipal
Government with respect to the consummation of the Transactions, the confirmation by the Shanghai Stock Exchange that it has no
further comments on the Reorganization Report, and, as required, circulation of documents to shareholders of Parent of all necessary
announcements, notices and documents required in connection with the Parent Shareholders Meeting. Parent shall use its reasonable
best efforts to solicit from its shareholders proxies in relation to the Parent Shareholders Meeting.
Section 6.03 Access
to Information.
(a) From
the date hereof until the Effective Time and subject to applicable Law and the terms of Section 9.09 of this Agreement, upon reasonable
advance notice from Holdco, the Company shall (i) provide to Holdco (and Holdco’s officers, directors, employees, accountants,
consultants, financial and legal advisors, agents, financing sources and other representatives, collectively, “Representatives”)
reasonable access during normal business hours to the offices, properties, books and records of any Group Company, (ii) furnish
to Holdco and its Representatives such existing financial and operating data and other existing information as such persons may
reasonably request, and (iii) instruct its and its Subsidiaries’ Representatives to reasonably cooperate with Holdco and
its Representatives in their investigation; provided, that any such investigation shall be conducted in such a manner as
not to interfere unreasonably with the business or operations of the Company or its Subsidiaries or otherwise result in any significant
interference with the timely discharge by the employees of the Company or its Subsidiaries of their duties; provided, further,
that the Company shall not be required to provide Holdco or any of its Representatives with access to any books, records, documents
or other information to the extent that (i) such books, records, documents or other information are subject to any confidentiality
agreement with a Third Party (provided that at the request of Holdco, the Company shall use its commercially reasonable efforts
to obtain a waiver from such Third Party), (ii) the disclosure of such books, records, documents or other information would result
in the loss of attorney-client privilege, (iii) the disclosure of such books, records, documents or other information is prohibited
by applicable Law, or (iv) the Company determines in good faith that such books, records, documents or other information involves
trade secrets of the Company or its Subsidiaries.
(b) No
investigation pursuant to this Section 6.03(a) shall affect any representation or warranty in this Agreement of any party hereto
or any condition to the obligations of the parties hereto.
Section 6.04 No
Solicitation of Transactions.
(a) The
Company agrees that neither it nor any of its Subsidiaries nor any of the directors or officers of any Group Company will, and
that it will direct its and its Subsidiaries’ Representatives (including, without limitation, any investment banker, attorney
or accountant retained by any Group Company), not to, in each case, directly or indirectly, (i) solicit, initiate or knowingly
encourage (including by way of furnishing nonpublic information in a manner designed to knowingly encourage), or take any other
action to knowingly facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal
or offer to its shareholders) with respect to, or that would reasonably be expected to lead to, any Competing Transaction, or
(ii) enter into, maintain or continue discussions or negotiations with, or provide any nonpublic information relating to the Company
or the Transactions to, any person or entity in furtherance of such inquiries or to obtain a proposal or offer for a Competing
Transaction, or (iii) agree to, approve, endorse or recommend any Competing Transaction or enter into any letter of intent or
Contract or commitment contemplating or otherwise relating to any Competing Transaction (in each case, other than as permitted
pursuant to Section 6.04(c)), or (iv) authorize or permit any of the officers, directors or Representatives of the Company
or any of its Subsidiaries acting directly or indirectly under the direction of the Company or any of its Subsidiaries, to take
any action set forth in clauses (a)(i) – (a)(iii) of this Section 6.04. The Company shall not, and shall cause its Subsidiaries
not to, enter into any confidentiality agreement with any third party subsequent to the date hereof which prohibits the Company
from providing non-public information concerning the Company or any of its Subsidiaries to Holdco in connection with a Competing
Transaction or release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it
is a party in respect of any Competing Transaction unless it releases or waives such provision in the Confidentiality Agreement.
The Company shall notify Holdco as promptly as practicable (and in any event within forty-eight (48) hours after the Company attains
knowledge thereof), orally and in writing, of any proposal or offer with respect to, or any request for non-public information
concerning the Company or any of its Subsidiaries in connection with a Competing Transaction, specifying (x) the material terms
and conditions thereof (including, if applicable, material amendments or proposed material amendments) and providing, if applicable,
copies of any written requests, proposals or offers, including proposed agreements, (y) the identity of the party making such
proposal, offer or request, and (z) whether the Company has any intention to provide confidential information to such person.
The Company shall keep Holdco informed, on a reasonably current basis (and in any event within forty-eight (48) hours of the occurrence
of any material change, development, discussion or negotiation) of the status and terms of any such proposal, offer or request
and of any material changes in the status and terms of any such proposal, offer or request (including the material terms and conditions
thereof). Without limiting the foregoing, the Company shall (A) promptly notify Holdco orally and in writing if it determines
to initiate actions concerning a proposal, offer or request, in each case as permitted by this Section 6.04, and (B) provides
Holdco with forty-eight (48) hours’ prior notice (or such lesser prior notice as is provided to members of the Company Board
or members of the Special Committee) of any meeting of the Company Board or Special Committee at which the Company Board or Special
Committee, as applicable, will be requested to consider any Competing Transaction. Immediately upon the execution and delivery
of this Agreement, the Company shall cease and cause to be terminated all existing discussions or negotiations with any parties
conducted heretofore with respect to any possible Competing Transaction.
(b) Notwithstanding
anything to the contrary in this Section 6.04, at any time prior to the receipt of the Requisite Company Vote, the Company Board
may, directly or indirectly through the Company’s Representatives, (x) contact and engage in discussions with any person
who has made an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction (provided that such
bona fide proposal or offer was not initiated or solicited in violation of Section 6.04(a)) in order to clarify and understand
the terms and conditions thereof to the extent the Special Committee shall have determined in good faith that such contact is
necessary to determine whether such proposal or offer constitutes or is reasonably expected to lead to a Superior Proposal, which
actions shall not be deemed to violate Section 6.04(a), and (y) furnish information to, and enter into discussions with, such
person if the Special Committee has (i) determined in good faith (after consultation with its financial advisor and independent
legal counsel), that such proposal or offer constitutes or would reasonably be expected to result in a Superior Proposal, (ii)
determined in good faith (after consultation with independent legal counsel), that, in light of such Superior Proposal, failure
to furnish such information to or enter into discussions with such person would be reasonably likely to violate its fiduciary
obligations to the Company and its shareholders under applicable Law, and (iii) obtained from such person an executed confidentiality
agreement on terms no less favorable to the Company in the aggregate than those contained in the Confidentiality Agreement (it
being understood that such confidentiality agreement and any related agreements shall not include any provision calling for any
exclusive right to negotiate with such party or having the effect of prohibiting the Company from satisfying its obligations under
this Agreement, and that the Company may enter into a confidentiality agreement without a standstill provision or with other terms
that are less favorable to the Company than the Confidentiality Agreement if it waives or similarly modifies the standstill provision
and such other terms, as applicable, in the Confidentiality Agreement); provided that the Company shall concurrently make
available to Holdco any material information concerning the Company and the Subsidiaries that is provided to any such person and
that was not previously made available to Holdco or its Representatives.
(c) Except
as set forth in this Section 6.04, neither the Company Board nor any committee thereof shall (i) change, withhold, withdraw, qualify
or modify, or propose to change, withhold, withdraw, qualify or modify, in each case, in a manner adverse to Holdco or Merger
Sub, the Company Recommendation, or fail to include the Company Recommendation in the Proxy Statement (a “Change in the
Company Recommendation”), (ii) approve or recommend, or publicly propose to approve or recommend to the shareholders
of the Company, an offer or proposal with respect to a Competing Transaction, (iii) if a tender offer or exchange offer for
20% or more of the outstanding share capital of the Company that constitutes a Competing Transaction is commenced, fail to recommend
against acceptance of such tender offer or exchange offer by its shareholders within ten (10) Business Days after commencement,
which shall constitute a failure to recommend against acceptance of such tender offer or exchange offer; provided that
a “stop, look and listen” communication by the Company Board or the Special Committee to shareholders of the Company
pursuant to Rule 14d-9(f) of the Exchange Act shall not be deemed to be a Change in the Company Recommendation or violate
this Section 6.04, or (iv) approve or recommend, cause or permit the Company to enter into, or submit to a vote by its shareholders,
any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other or
similar document or Contract with respect to any Competing Transaction (other than a confidentiality agreement entered into in
compliance with Section 6.04(b)) (any of the foregoing, an “Alternative Acquisition Agreement”).
(d) Notwithstanding
the foregoing, at any time prior to the receipt of the Requisite Company Vote, if the Company has received a written, bona fide
proposal or offer with respect to a Competing Transaction that was not obtained in violation of Section 6.04 (other than immaterial
non-compliance that does not adversely affect Holdco) and the Company Board determines, in its good faith judgment upon the recommendation
of the Special Committee, prior to the time of the Company Shareholders’ Meeting and upon advice by its financial advisor
and independent legal counsel, that such proposal or offer constitutes a Superior Proposal and failure to make a Change in the
Company Recommendation with respect to such Superior Proposal would be inconsistent with its fiduciary obligations to the Company
and its shareholders under applicable Law, the Company Board may, upon the recommendation of the Special Committee, (x) effect
a Change in the Company Recommendation and/or (y) (1) authorize the Company to terminate this Agreement in accordance with Section
8.03(c), (2) immediately prior to, contemporaneously with or immediately following the termination of this Agreement, approve
or recommend such Superior Proposal and (3) immediately prior to, contemporaneously with or immediately following the termination
of this Agreement, authorize the Company to enter into or execute any Alternative Acquisition Agreement with respect to such Superior
Proposal, but only if (i) the Company shall have complied with the requirements of Sections 6.04(a) and 6.04(b) with respect to
such proposal or offer (other than immaterial non-compliance that does not adversely affect Holdco); (ii) after (A) providing
at least five (5) Business Days’ written notice to Holdco (a “Notice of
Superior Proposal”) advising Holdco that the Company Board has received a Superior Proposal, specifying the material
terms and conditions of such Superior Proposal, identifying the person making such Superior Proposal and indicating that the Company
Board intends to take any actions described in the foregoing clause (x) and/or (y) and the manner in which it intends (or may
intend) to do so, it being understood that the Notice of Superior Proposal or any amendment or update thereto or the determination
to so deliver such notice shall not constitute a Change in the Company Recommendation, (B) negotiating with and causing its financial
and legal advisors to negotiate with Holdco and its Representatives in good faith (to the extent Holdco desires to negotiate)
to make adjustments in the terms and conditions of this Agreement so that such Third Party proposal or offer would cease to constitute
a Superior Proposal, and (C) permitting Holdco and its Representatives to make a presentation to the Company Board and the
Special Committee regarding this Agreement and any adjustments with respect thereto (to the extent Holdco desires to make such
a presentation); provided that any material modifications to such Third Party proposal or offer that the Company Board
has determined to be a Superior Proposal shall be deemed a new Superior Proposal and the Company shall be required to again comply
with the requirements of this Section 6.04; and (iii) if Holdco does not, within ten (10) Business Days of Holdco’s receipt
of the Notice of Superior Proposal, make an offer that the Company Board determines, in its good faith judgment upon the recommendation
of the Special Committee (after consultation with its financial advisor and independent legal counsel), to be at least as favorable
to the Company’s shareholders as such Superior Proposal.
(e) Notwithstanding
the foregoing, if the Company Board determines, in its good faith judgment upon the recommendation of the Special Committee, prior
to the time of the Company Shareholders’ Meeting and upon advice by its independent legal counsel, that failure to make
a Change in the Company Recommendation would be inconsistent with its fiduciary obligations to the Company and its shareholders
under applicable Law, the Company Board may, upon the recommendation of the Special Committee, effect a Change in the Company
Recommendation, provided that the Company Board shall (i) provide ten (10) Business Days’ prior written notice to
Holdco advising Holdco that the Company Board intends to effect a Change of Recommendation and specifying in reasonable detail
the facts underlying and the reasons for the decision by the Company Board (acting upon the recommendation of the Special Committee)
to take such action and (ii) during such ten (10) Business Day period, if requested by Holdco, engage in good faith negotiations
with Holdco to amend this Agreement in such a manner that obviates the need for such Change in the Company Recommendation.
(f) A
“Competing Transaction” means any of the following (other than the
Transactions): (i) any merger, consolidation, share exchange, business combination, scheme of arrangement, amalgamation, recapitalization,
liquidation, dissolution or other similar transaction involving the Company or any of its Subsidiaries whose assets, individually
or in the aggregate, constitute 20% or more of the consolidated assets of the Company or to which 20% or more of the net revenue
or net income of the Company are attributable; (ii) any sale, lease, exchange, transfer or other disposition of assets or businesses
that constitute or represent 20% or more of the net revenue or net income or assets of the Company and its Subsidiaries, taken
as a whole; (iii) any sale, exchange, transfer or other disposition of 20% or more of any class of equity securities of the Company;
or (iv) any tender offer or exchange offer that, if consummated, would result in any person beneficially owning 20% or more of
any class of equity securities of the Company.
(g) A
“Superior Proposal” means a written, bona fide offer or proposal with
respect to a Competing Transaction (provided that, for purposes of the definition of “Superior Proposal”, each
reference to “20% or more” in the definition of “Competing Transaction” shall be replaced with “more
than 50%”), which shall not have been obtained in violation of this Section 6.04 (other than immaterial non-compliance that
does not adversely affect Holdco) and is made by a Third Party on terms that the Company Board determines, in its good faith judgment
upon the recommendation of the Special Committee (after receiving the advice of its financial advisor and independent legal counsel)
(i) would be reasonably likely to be consummated in accordance with its terms, taking into consideration, among other things,
all of the terms and conditions, including all legal, financial, regulatory and other aspects, of such offer and this Agreement,
including conditions to closing, financing, regulatory approvals, identity of the person or group making the offer, breakup or
termination fee and expense reimbursement provisions, expected timing and risk and likelihood of consummation and other relevant
events and circumstances, and (ii) if consummated, would result in a transaction more favorable to the Company’s shareholders
(other than the Rollover Shareholders) in aggregate from a financial point of view than the Transactions (in each case, after
taking into account any revisions to this Agreement made or proposed in writing by Holdco pursuant to Section 6.04(d) or otherwise
prior to the time of determination); provided, however, that any such offer or proposal shall not be deemed to be
a “Superior Proposal” if (A) the consummation of the transactions contemplated by such offer or proposal is subject
to the conduct of any due diligence review or investigation of the Company or any of its Subsidiaries by the party making such
offer or proposal, or (B) the consummation of the transactions contemplated by such offer or proposal is conditioned upon receipt
of financing.
Section 6.05 Directors’
and Officers’ Indemnification and Insurance.
(a) The
memorandum and articles of association of the Surviving Company shall contain provisions no less favorable with respect to exculpation
and indemnification than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof,
which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in
any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors,
officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The
Surviving Company shall maintain in effect for six (6) years from the Effective Time, the current directors’ and officers’
liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including
acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby,
the “Indemnified Parties”); provided, however, that
the Surviving Company may substitute therefor policies of at least the same coverage containing terms and conditions that are
no less favorable than those provided under the Company’s current policies, and provided, further, that in
no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal
to 300% of current annual premiums paid by the Company for such insurance (which premiums, as of the date of this Agreement, the
Company represents and warrants to be the aggregate amount set forth in Section 6.05(b) of the Company Disclosure Schedule). Notwithstanding
anything to the contrary set forth in this Agreement, the Company may and, at Holdco’s request, the Company shall, purchase
a six (6)-year “tail” prepaid policy prior to the Effective Time on terms and conditions no less advantageous to the
Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such
“tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall,
and Holdco shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective
obligations thereunder, and all other obligations of Holdco or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject
to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply with all
of the Company’s obligations, and shall cause its Subsidiaries to comply with their respective obligations to indemnify
and hold harmless (including any obligations to advance funds for expenses) the present and former officers and directors
thereof against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses,
claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding
or investigation, whether civil, criminal, administrative or investigative (“Damages”),
arising out of, relating to or in connection with (i) the fact that such person is or was a director or officer of the Company
or such Subsidiary or (ii) any acts or omissions occurring or alleged to have occurred prior to or at the Effective Time (including
acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions
and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party), to the extent
provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements
in effect on the date hereof (true and complete copies of which shall have been delivered to Holdco prior to the date hereof)
and to the fullest extent permitted by the CICL or any other applicable Law, including the approval of this Agreement, the Transactions
or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement
right or any such person, provided that such indemnification shall be subject to any limitation imposed from time to time
under applicable Law.
(d) In
the event the Surviving Company or any of its successors or assigns (i) consolidates with or merges into any other person
and shall not be the continuing or surviving company or entity of such consolidation or merger or (ii) transfers all or substantially
all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors
and assigns of the Surviving Company or, at Holdco’s option, Holdco, shall assume the obligations set forth in this Section
6.05.
(e) The
provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall
be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a third-party
beneficiary of the provisions of this Section 6.05.
(f) Nothing
in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’
insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries or their
respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section
6.05 is not prior to or in substitution for any such claims under any such policies.
Section 6.06 Notification
of Certain Matters.
Each of the Company
and Holdco shall promptly notify the other in writing of:
(a) any
notice or other communication from any person alleging that the consent of such person is or may be required in connection with
the Transactions;
(b) any
notice or other communication from any Governmental Authority in connection with the Transactions;
(c) any
Actions commenced or, to the knowledge of the Company or the knowledge of Holdco, threatened against the Company or any of its
Subsidiaries or Holdco and any of its Subsidiaries, as the case may be, that, if pending on the date of this Agreement, would
have been required to have been disclosed by such party pursuant to any party’s representations and warranties contained
herein, or that relate to such party’s ability to consummate the Transactions; and
(d) if
a breach of any representation or warranty or failure to perform any covenant or agreement on the part of such person set forth
in this Agreement shall have occurred that would cause the conditions set forth in Section 7.01, Section 7.02 and Section 7.03
not to be satisfied;
together, in each case, with a copy
of any such notice, communication or Action; provided that the delivery of any notice pursuant to this Section 6.06 shall
not limit or otherwise affect the remedies available hereunder to the party receiving such notice; provided, further,
that failure to give prompt notice pursuant to Section 6.06(d) shall not constitute a failure of a condition to the Merger set
forth in Article VII except to the extent that the underlying breach of a representation or warranty or failure to perform any
covenant or agreement not so notified would, standing alone, constitute such a failure.
Section 6.07 Financing.
(a) Each
of Holdco and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all actions and do, or cause to
be done, all things necessary, proper or advisable to arrange and obtain the Debt Financing on the terms and conditions described
in the Debt Commitment Letter, including by (i) maintaining in effect the Debt Commitment Letter, (ii) satisfying on
a timely basis all conditions to the closing of and funding under the Debt Commitment Letter applicable to Parent, Holdco and/or
Merger Sub that are within their control, including without limitation paying when due all fees arising under the Debt Commitment
Letter as and when they become due and payable thereunder, (iii) consummating the financing contemplated by the Debt Commitment
Letter at or prior to the Effective Time, and (iv) enforcing the parties’ funding obligations (and the rights of Parent,
Holdco and/or Merger Sub) under the Debt Commitment Letter to the extent necessary to fund the Merger Consideration; provided
that Holdco and Merger Sub may amend or modify the Debt Commitment Letter, and/or elect to replace all or any portion of the
Debt Financing with alternative debt financing on terms and conditions not materially less favorable, in the aggregate, from the
standpoint of the Company than the terms and conditions as set forth in the Debt Commitment Letter as in effect on the date hereof
(the “Alternative Financing”), in each case so long as (i) the
aggregate proceeds of the Debt Financing (as amended or modified) and/or any Alternative Financing will be sufficient for Merger
Sub and the Surviving Company to pay the Merger Consideration and any other amounts required to be paid in connection with the
consummation of the Transactions upon the terms and conditions contemplated hereby and (ii) such amendment or modification or
such Alternative Financing does not (A) impose new or additional conditions compared to those in the Debt Commitment Letter that
would reasonably be expected to prevent or materially delay the ability of Holdco or Merger Sub to consummate the Merger or (B) involve
any change, terms or conditions that would adversely impact the ability of Holdco or Merger Sub to enforce their rights against
the Debt Financing Sources. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated
by the Debt Commitment Letter, (x) Holdco and Merger Sub shall promptly notify the Company in writing and (y) Holdco and Merger
Sub shall use their reasonable best efforts to arrange and obtain the Alternative Financing as promptly as practicable following
the occurrence of such event. If Holdco becomes aware of the existence of any fact or event that would reasonably be expected
to cause the Debt Financing to become unavailable on the terms and conditions contemplated by the Debt Commitment Letter, Holdco
and Merger Sub shall use their reasonable best efforts to either cure or eliminate such fact or event, or to arrange and obtain
the Alternative Financing. Holdco shall deliver to the Company as promptly as practicable (and no later than two (2) Business
Days) after such execution, true and complete copies of all Contracts or other arrangements pursuant to which any such alternative
sources have committed to provide such Alternative Financing.
(b) Without
limiting the generality of Section 6.07(a), Holdco and Merger Sub shall give the Company prompt notice in writing: (i) of any
material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably
be expected to give rise to any breach or default) by any party to Debt Commitment Letter that would reasonably be expected to
result in any condition of the Debt Commitment Letter not to be satisfied or the termination of the Debt Commitment Letter, of
which Holdco or Merger Sub becomes aware; (ii) of the receipt of any written notice or other written communication from any party
to the Debt Commitment Letter with respect to any alleged or potential breach, default, termination or repudiation by any party
to the Debt Commitment Letter or any provisions of the Debt Commitment Letter related to the Debt Financing that would reasonably
be expected to result in any condition of the Debt Commitment Letter not to be satisfied or the termination of the Debt Commitment
Letter; (iii) of any material dispute or disagreement between or among any parties to the Debt Commitment Letter that would reasonably
be expected to prevent or materially delay the Debt Financing; and (iv) if Holdco or Merger Sub at any time believes that it will
not be able to obtain all or any portion of the Debt Financing on the terms, in the manner or from the sources contemplated by
the Debt Commitment Letter. At the written request of the Company, each of Holdco and Merger Sub shall provide the Company with
such information as shall be reasonably requested by the Company to allow the Company to monitor the progress of Holdco and Merger
Sub’s efforts to arrange the Debt Financing (including any Alternative Financing, if applicable).
(c) Prior
to the Closing, the Company shall, and shall direct its Subsidiaries to, use reasonable best efforts to provide to Holdco, Merger
Sub and the Debt Financing Sources, at Holdco’s sole expense, all reasonable cooperation reasonably requested by Holdco
that is necessary in connection with the Debt Financing, including (i) furnishing to Holdco and Merger Sub as promptly as available
(A) audited consolidated balance sheets of the Company and its consolidated subsidiaries as at the end of, and related statements
of operations, changes in shareholders’ equity and cash flows of the Target and its consolidated subsidiaries for, the three
most recently completed fiscal years ended at least four 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 Company and its
consolidated subsidiaries as at the end of, and related statements of operations, changes in shareholders’ equity and cash
flows of the Company and its consolidated subsidiaries for, each subsequent fiscal quarter (other than the fourth fiscal quarter
of any fiscal year) of the Company 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, (ii) participation in a
reasonable number of customary meetings, presentations and/or due diligence sessions, including arranging for reasonable and customary
direct contact between Representatives of the Company with Representatives of Holdco and/or its Debt Financing Sources; (iii)
facilitating the securing or pledging of collateral in connection with the Debt Financing as reasonably requested by Holdco and
the lenders party thereto under the Debt Commitment Letter and customary for financings similar to the Debt Financing (provided
that no such security or pledge shall be effective prior to the Effective Time), (iv) furnishing Holdco, Merger Sub and their
respective Representatives promptly with all documentation and other information required with respect to the Debt Financing and/or
any Alternative Financing under applicable “know you customer” and anti-money laundering rules and regulations, and
(v) taking reasonable and customary corporate actions necessary to permit the consummation of the Debt Financing and/or Alternative
Financing, including without limitations the execution and delivery at the Closing of any document or instrument as required by
the Debt Commitment Letter or other definitive financing document related to the Debt Financing and/or Alternative Financing;
provided, however, that, (a) irrespective of the above, no obligation of the Company or any of its Subsidiaries
under the Debt Commitment Letter or any other document or instrument with respect to Debt Financing and/or Alternative Financing
shall be effective until the Effective Time, (b) none of the Company or any of its Subsidiaries shall be required to take any
action under the Debt Commitment Letter or any other document or instrument with respect to Debt Financing and/or Alternative
Financing that is not contingent upon the Closing (including the entry into any agreement that is effective before the Effective
Time) or that would be effective prior to the Effective Time and (c) nothing herein shall require such cooperation to the extent
it would interfere unreasonably with the business or operations of the Company or its Subsidiaries. None of the Company or any
of its Subsidiaries shall be required to take any action that would subject it to actual or potential liability, to bear any cost
or expense or to pay any commitment or other similar fee or make any other payment (other than reasonable out-of-pocket costs
or other customary expenses to be advanced or reimbursed promptly by Holdco and Merger Sub) or incur any other liability or provide
or agree to provide any indemnity in connection with the Financing or any of the foregoing, in each case, prior to the Effective
Time.
(d) Holdco
and Merger Sub shall on a joint and several basis indemnify and hold harmless the Company, its Subsidiaries and their respective
Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments
and penalties suffered or incurred by them in connection with the arrangement of the Debt Financing (including any action taken
in accordance with this Section 6.07(d)) and any information utilized in connection therewith (other than any information relating
to the Company provided by the Company), except as a direct result of the willful misconduct of the Company, its Subsidiaries
or any of their respective Representatives. Holdco and Merger Sub shall, promptly upon request by the Company, reimburse the Company
for all documented and reasonable out-of-pocket costs incurred by the Company or its Subsidiaries in connection with this Section
6.07.
Section 6.08 Support
Agreement.
Each of Parent
and Holdco shall use its reasonable best efforts to consummate the transactions contemplated by the Support Agreement immediately
prior to the Closing on the terms and conditions described in the Support Agreement, including using reasonable best efforts to
(i) maintain in full force and effect the Support Agreement until the transactions contemplated by this Agreement are consummated,
(ii) satisfy on a timely basis all conditions applicable to Parent and Holdco in the Support Agreement, and (iii) cause the Rollover
Shareholders to vote their Shares in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions,
hold their respective Rollover Shares through the Effective Time, receive no cash consideration for their Rollover Shares in the
Merger and have such Rollover Shares be converted into ordinary shares of the Surviving Company at the Effective Time (subject
to the conditions set forth in the Support Agreement). Holdco shall promptly (and in any event within two (2) Business Days) notify
the Company and the Special Committee of any termination of, material amendment or modification to be made to, or any waiver of
any material provision or remedy under, the Support Agreement.
Section 6.09 Further
Action; Reasonable Best Efforts.
(a) Upon
the terms and subject to the conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to
take or cause to be taken all actions, and do or cause to be done all things, reasonably necessary, proper or advisable on its
part under this Agreement and applicable Laws to consummate the Transactions as soon as reasonably practicable, including, but
not limited to, (i) preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices,
reports and other filings and to obtain as promptly as practicable all consents, registrations, approvals, permits or authorizations
necessary or advisable to be obtained from any Governmental Authority in order to consummate the Transactions (for the avoidance
of doubt, including, but not limited to, any of the Requisite Regulatory Approvals), and (ii) taking any and all steps necessary
to avoid or eliminate each and every impediment under any applicable Law that may be asserted by any Governmental Authority so
as to enable the parties hereto to expeditiously consummate the Transactions, including, without limitation, committing to and
effecting, by consent decree, hold separate orders, or otherwise, the restructuring, reorganization, sale, divestiture or disposition
of such of its assets, properties or businesses; provided, that the Company shall not be required to hold separate, restructure,
reorganize, sell, divest, dispose of, or otherwise take or commit to any action that limits its freedom of action with respect
to, or its ability to retain, any of its businesses, services or assets unless any such action is subject to the consummation
of the Merger. If, at any time after the Effective Time, any further action is necessary or desirable to carry out the purposes
of this Agreement, the proper officers and directors of each party to this Agreement shall use their reasonable best efforts to
take all such action.
(b) In
furtherance and not in limitation of the provisions of Section 6.09(a), Holdco and/or Parent shall prepare and make all filings
and submit all written materials, to the relevant PRC Governmental Authorities, in each case, as promptly as practicable after
the date of this Agreement and as may be reasonably necessary, proper or advisable for the obtaining of each of the Requisite
Regulatory Approvals; provided that, subject to applicable Laws, prior to submission of any such filing or written materials,
Holdco and/or Parent shall (i) provide the Company with a reasonable period of time to review and comment on all of the information
relating to the Group Companies that appears in any such filing or written materials (the “Company-Related Information”)
and (ii) consider in good faith all comments reasonably proposed by the Company with respect to the Company-Related Information.
In exercising the foregoing rights, each of the Company, Holdco and Parent shall act as reasonably and as promptly as practicable.
(c) Upon
the terms and subject to the conditions of this Agreement and subject to Applicable Laws, each of the parties hereto shall use
its reasonable best efforts to (i) coordinate and cooperate fully with the other parties hereto in exchanging such information
and providing such assistance as the other parties may reasonably request in connection therewith (including, without limitation,
(A) notifying the other parties promptly of any communication (whether verbal or written) it or any of its Affiliates receives
from any Governmental Authority in connection with such filings or submissions and (B) permitting the other parties to review
in advance, and consulting with the other parties on, any proposed filing, submission or communication (whether verbal or written)
by such party to any Governmental Authority and (ii) cooperate with the other parties hereto and use its reasonable best
efforts, and direct its Subsidiaries to use their respective reasonable best efforts, to take, or cause to be taken, all appropriate
action, and to do, or cause to be done, all things necessary, proper or advisable under applicable Law or otherwise to consummate
and make effective the Transactions, including, without limitation, employing such resources as are necessary to obtain the Requisite
Regulatory Approvals. Parent, Holdco and Merger Sub shall, jointly and severally, indemnify and hold harmless the Company from
any Damages incurred by the Company in connection with claims against the Company or any of its officers and directors resulting
from, arising out of or in connection with Parent, Holdco and/or Merger Sub’s disclosure of the Company-Related Information
(other than any information of the Company included in the Company SEC Reports) to any Governmental Authority or made publicly
available, except to the extent that such Damages are caused by or resulted from any breach of applicable Law by any Group Company;
provided that Parent, Holdco or Merger Sub shall not be responsible for any such Damages if (x) it is determined in a final,
non-appealable decision of a court or arbitral tribunal of competent jurisdiction that such Damages were caused by or resulted
from any untrue statement of a material fact contained in the Company-Related Information or any omission of a material fact necessary
in order to make the statements contained in the Company-Related Information, in light of the circumstances under which they were
made, not misleading, or (y) Parent, Holdco or Merger Sub disputes such Damages in writing and such Damages have not been determined
in a final, non-appealable decision of a court or arbitral tribunal of competent jurisdiction.
(d) Each
party hereto shall, upon request by any other party, furnish such other party with all information concerning itself, its subsidiaries,
directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the
Proxy Statement, the Schedule 13E-3, or any other statement, filing, notice or application made by or on behalf of Parent, Holdco,
Merger Sub, the Company or any of their respective subsidiaries to any third party and/or any Governmental Authority in connection
with the Transactions.
Section 6.10 Obligations
of Merger Sub.
Holdco shall take
all action necessary to cause Merger Sub to perform its obligations under this Agreement and to consummate the Transactions on
the terms and subject to the conditions set forth in this Agreement.
Section 6.11 Participation
in Litigation.
Prior to the Effective
Time, the Company shall (a) give prompt notice to Holdco of any Actions commenced or, to the knowledge of the Company, threatened,
against the Company and/or its directors which relate to this Agreement or the Transactions, and (b) give Holdco the opportunity
to participate in the defense or settlement of any shareholder Action against the Company and/or its directors relating to this
Agreement or the Transactions, and, except as set forth in Section 6.11 of the Company Disclosure Schedule, no such Action shall
be settled or compromised, without Holdco’s prior written consent (which consent shall not be unreasonably withheld, conditioned
or delayed).
Section 6.12 Resignations.
To the extent
requested by Holdco in writing at least three (3) Business Days prior to Closing, on the Closing Date, the Company shall use reasonable
best efforts to cause to be delivered to Holdco duly signed resignations, effective as of the Effective Time, of the directors
of any Group Company designated by Holdco, which shall include a waiver of any claims against any Group Company by such directors
and a waiver of any claims against such directors by the Group Companies.
Section 6.13 Public
Announcements.
Except as may
be required by applicable Law, the press release announcing the execution of this Agreement shall be issued only in such form
as shall be mutually agreed upon by the Company and Holdco. Thereafter, at any time prior to termination of this Agreement pursuant
to Article VIII, Holdco and the Company shall consult with each other before issuing any press release, having any communication
with the press (whether or not for attribution), making any other public statement or scheduling any press conference or conference
call with investors or analysts with respect to this Agreement or the Transactions and, except in respect of any such press release,
communication, other public statement, press conference or conference call as may be required by applicable Law or rules and policies
of Nasdaq, shall not issue any such press release, have any such communication, make any such other public statement or schedule
any such press conference or conference call prior to such consultation. Notwithstanding the foregoing, the restrictions set forth
in this Section 6.13 shall not apply to any release or announcement made or proposed to be made by the Company pursuant to Section
6.04(c).
Section 6.14 Stock
Exchange Delisting.
Prior to the Effective
Time, the Company shall cooperate with Holdco and use reasonable best efforts to take, or cause to be taken, all actions, and
do or cause to be done all things, reasonably necessary, proper or advisable on its part under applicable Laws and rules and policies
of Nasdaq to enable the delisting by the Surviving Company from Nasdaq and the deregistration of the Shares under the Exchange
Act as promptly as practicable after the Effective Time.
Section 6.15 Takeover
Statutes.
If any Takeover
Statute is or may become applicable to any of the Transactions, the parties shall use their respective reasonable best efforts
(a) to take all action necessary so that no Takeover Statute is or becomes applicable to any of the Transactions and (b) if any
such Takeover Statute is or becomes applicable to any of the foregoing, to take all action necessary (including, in the case of
the Company and the Company Board, grant all necessary approvals) so that the Transactions may be consummated as promptly as practicable
on the terms contemplated by this Agreement, including all actions to eliminate or lawfully minimize the effects of such Takeover
Statute on the Transactions.
Section 6.16 Repayment
of Existing Debt.
Prior to the Closing
Date, the Company shall have repaid the entire outstanding principal and accrued interest thereon and all other amounts due under
the Company Convertible Notes.
Section 6.17 Actions
Taken at Direction of the Founder Parties.
Notwithstanding
any other provision of this Agreement to the contrary, the Company shall not be deemed to be in breach of any representation,
warranty, covenant or agreement hereunder if the alleged breach is the proximate result of action or inaction taken by the Company
following the execution and delivery of this Agreement at the direction of any of the Founder Parties without the approval or
direction of the Company Board (acting with the concurrence of the Special Committee) or the Special Committee.
Section 6.18 Employee
Matters.
For a period of
12 months following the Closing, with respect to employees of the Company or its Subsidiaries immediately before the Effective
Time (“Company Employees”), Holdco shall, or shall cause the Surviving Company to, for so long as each such
Company Employee is engaged by Holdco, the Surviving Company or any of their Affiliates, provide such Company Employee (i) a base
salary that is comparable in the aggregate to that provided by the Company or its relevant Subsidiary immediately prior to the
Effective Time, and (ii) employee benefits that are substantially similar in the aggregate to those under the Company Employee
Plans in effect immediately prior to the Effective Time. Notwithstanding anything to the contrary in this Section 6.18, nothing
in this Agreement shall be construed to create a contract of employment, either express or implied-in-fact with any Continuing
Employee nor shall anything in this Section 6.18 be construed as limiting the ability of Holdco, the Surviving Company or any
of their Affiliates, as the case may be, to terminate any Continuing Employee for any reason permissible under applicable Law.
Article
VII
CONDITIONS
TO THE MERGER
Section 7.01 Conditions
to the Obligations of Each Party.
The obligations
of the Company, Holdco and Merger Sub to consummate the Merger are subject to the satisfaction or waiver (where permissible) of
the following conditions:
(a) Company
Shareholder Approval. This Agreement, the Plan of Merger and the Transactions shall have been authorized and approved by holders
of Shares constituting the Requisite Company Vote at the Company Shareholders’ Meeting in accordance with the CICL and the
Company’s memorandum and articles of association.
(b) No
Injunction. No Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Law or award, writ,
injunction, determination, rule, regulation, judgment, decree or executive order which is then in effect and has or would have
the effect of making the Merger illegal or otherwise prohibiting the consummation of the Transactions (an “Order”).
(c) Parent
Shareholder Approval. This Agreement, the Plan of Merger and the Transactions shall have been authorized, approved and adopted
by the holders of the requisite number of outstanding shares at the Parent Shareholders Meeting.
(d) Regulatory
Approvals. All Requisite Regulatory Approvals shall have been obtained and be in full force and effect.
Section 7.02 Conditions
to the Obligations of Holdco and Merger Sub.
The obligations
of Holdco and Merger Sub to consummate the Merger are subject to the satisfaction or waiver (where permissible) of the following
additional conditions:
(a) Representations
and Warranties. (i) Other than the representations and warranties of the Company contained in Section 3.03(a), Section 3.03(c)
and Section 3.04, the representations and warranties of the Company contained in this Agreement (disregarding for this purpose
any limitation or qualification by materiality or Company Material Adverse Effect) shall be true and correct in all respects as
of the date hereof and as of the Closing, as though made on and as of such date and time (other than representations and warranties
that by their terms address matters only as of a specified time, which shall be true and correct in all respects as of such time),
except to the extent such failures to be true and correct, individually or in the aggregate, would not reasonably be expected
to have a Company Material Adverse Effect; and (ii) the representations and warranties set forth in Section 3.03(a), Section
3.03(c) and Section 3.04 shall be true and correct in all respects, except for, solely with respect to Section 3.03(a), de minimis
inaccuracies, as of the date hereof and as of the Closing, as though made on and as of such date and time (other than representations
and warranties that by their terms address matters only as of a specified time, which shall be true and correct in all respects
as of such time).
(b) Agreements
and Covenants. The Company shall have performed or complied in all material respects with all agreements and covenants required
by this Agreement to be performed or complied with by it on or prior to the Effective Time.
(c) Officer
Certificate. The Company shall have delivered to Holdco a certificate, dated the Closing Date, signed by a senior executive
officer of the Company, certifying as to the satisfaction of the conditions specified in Section 7.02(a) and Section 7.02(b).
(d) Material
Adverse Effect. Since the date of this Agreement, there shall not have occurred and be continuing a Company Material Adverse
Effect.
Section 7.03 Conditions
to the Obligations of the Company.
The obligations
of the Company to consummate the Merger are subject to the satisfaction or waiver (where permissible) of the following additional
conditions:
(a) Representations
and Warranties. The representations and warranties of Holdco and Merger Sub contained in this Agreement (disregarding for
this purpose any limitation or qualification by materiality) shall be true and correct in all respects as of the date hereof and
as of the Closing, as though made on and as of such date and time (other than representations and warranties that by their terms
address matters only as of a specified time, which shall be true and correct only as of such time), except to the extent such
failures to be true and correct, individually or in the aggregate, would not reasonably be expected to prevent, materially delay
or materially impede or impair the ability of Holdco and Merger Sub to consummate any of the Transactions.
(b) Agreements
and Covenants. Holdco and Merger Sub shall have performed or complied in all material respects with all agreements and covenants
required by this Agreement to be performed or complied with by it on or prior to the Closing.
(c) Officer
Certificate. Holdco shall have delivered to the Company a certificate, dated the date of the Closing, signed by an executive
officer of Holdco, certifying as to the satisfaction of the conditions specified in Sections 7.03(a) and 7.03(b).
Section 7.04 Frustration
of Closing Conditions.
Prior to the Termination
Date, none of the Company, Holdco or Merger Sub may rely on the failure of any condition set forth in Article VII to be satisfied
if such failure was caused by such party’s failure to act in good faith to comply with this Agreement and consummate the
Transactions.
Article
VIII
TERMINATION,
AMENDMENT AND WAIVER
Section 8.01 Termination
by Mutual Consent.
This Agreement
may be terminated and the Transactions may be abandoned at any time prior to the Effective Time by mutual written consent of Holdco
and the Company with the approval of their boards of directors (or, in the case of the Company, upon the recommendation of the
Special Committee).
Section 8.02 Termination
by Either the Company or Holdco.
This Agreement
may be terminated by either the Company (upon the recommendation of the Special Committee) or Holdco at any time prior to the
Effective Time, if:
(a) the
Merger shall not have been consummated on or before the date falling nine (9) months from the date of this Agreement (the
“Termination Date”);
(b) any
Governmental Authority shall have enacted, issued, promulgated, enforced or entered any final, non-appealable Order;
(c) the
Requisite Company Vote shall not have been obtained at the Company Shareholders’ Meeting duly convened therefor and concluded
or at any adjournment or postponement thereof; or
(d) the
Parent Shareholder Approval shall not have been obtained at the Parent Shareholders Meeting duly convened therefor and concluded
or any adjournment or postponement thereof;
provided that the right to
terminate this Agreement pursuant to this Section 8.02(a) or Section 8.02(b) shall not be available to any party whose failure
to fulfill any of its obligations under this Agreement has been the primary cause of, or resulted primarily in, the failure of
the applicable conditions being satisfied.
Section 8.03 Termination
by the Company.
This Agreement
may be terminated by the Company (upon the recommendation of the Special Committee) at any time prior to the Effective Time, if:
(a) a
breach in any material respect of any representation, warranty, agreement or covenant of Holdco or Merger Sub set forth in this
Agreement, shall have occurred, which breach or failure would give rise to the failure of a condition set forth in Section 7.01
or Section 7.03 and as a result of such breach, such condition would not be capable of being satisfied prior to the Termination
Date and such breach is not curable or, if curable, is not cured prior to the Termination Date following receipt of written notice
of such breach from Holdco or Merger Sub; provided, however, that, the Company shall not have the right to terminate
this Agreement pursuant to this Section 8.03(a) if the Company is then in material breach of any representations, warranties,
agreements or covenants hereunder, which breach would give rise to the failure of the conditions set forth in Section 7.02(a)
or Section 7.02(b); or
(b) (i)
all of the conditions set forth in Section 7.01 and Section 7.02 (other than those conditions that by their nature are to be satisfied
by actions taken at the Closing) have been satisfied, (ii) the Company has irrevocably confirmed by notice to Holdco that all
conditions set forth in Section 7.03 have been satisfied (other than those conditions that by their nature are to be satisfied
by actions taken at the Closing) or that it is willing to waive any unsatisfied conditions in Section 7.03 and (iii) Holdco and
Merger Sub fails to complete the Closing within ten (10) Business Days after the delivery of such notice; or
(c) prior
to the receipt of the Requisite Company Vote, (i) the Company Board has, upon the recommendation of the Special Committee,
authorized the Company to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal, (ii) immediately
prior to, concurrently with or immediately following the termination of this Agreement, the Company enters into an Alternative
Acquisition Agreement with respect to the Superior Proposal, and (iii) the Company immediately prior to, or concurrently with,
such termination pays to Holdco in immediately available funds the Company Termination Fee required to be paid pursuant to Section
8.06(a); provided that the Company shall not be entitled to terminate this Agreement pursuant to this Section 8.03(c) unless
the Company has complied in all material respects with the requirements of Section 6.04.
Section 8.04 Termination
by Holdco.
This Agreement
may be terminated by Holdco at any time prior to the Effective Time, if:
(a) a
breach in any material respect of any representation, warranty, agreement or covenant of the Company set forth in this Agreement
shall have occurred, would give rise to the failure of a condition set forth in Section 7.01 or Section 7.02 and such breach is
not curable or, if curable, is not cured prior to the Termination Date following receipt of written notice of such breach from
Holdco or Merger Sub; provided, however, that, Holdco shall not have the right to terminate this Agreement pursuant
to this Section 8.04(a) if either Holdco or Merger Sub is then in material breach of any representations, warranties or covenants
hereunder, which breach would give rise to the failure of the conditions set forth in Section 7.03(a) or Section 7.03(b); or
(b) a
Company Triggering Event shall have occurred.
Section 8.05 Effect
of Termination.
In the event of
the termination of this Agreement pursuant to Article VIII, this Agreement shall forthwith become void, and there shall be no
liability under this Agreement on the part of any party hereto; provided, however, that the terms of Section 6.07(d),
Section 6.13, Article VIII and Article IX shall survive any termination of this Agreement.
Section 8.06 Fees
Following Termination.
(a) The
Company will pay, or cause to be paid, to Parent an amount equal to $44,437,000 (or, at the Company’s option, an equivalent
amount in RMB) (the “Company Termination Fee”) in the event that
this Agreement is terminated (i) by Holdco pursuant to Section 8.04; (ii) by the Company pursuant to Section 8.03(c); (iii) by
the Company or Holdco pursuant to Section 8.02(c) if (A) after the date hereof and prior to the Company Shareholders’
Meeting, a bona fide offer or proposal regarding a Competing Transaction shall have been made known to the Company, or shall have
been publicly announced or publicly made known, and not withdrawn and (B) within nine (9) months after such termination,
the Company enters a definitive agreement related to such Competing Transaction (provided that for purposes of this Section
8.06(a)(iii), all references to “20%” in the definition of “Competing Transaction” shall be deemed to
be references to “50%”), or (iv) by the Company or Holdco pursuant to Section 8.02(a) if (A) after the date
hereof and prior to the Termination Date, a bona fide offer or proposal regarding a Competing Transaction shall have been made
known to the Company, or shall have been publicly announced or publicly made known, and not withdrawn, (B) within nine (9) months
after such termination, the Company enters a definitive agreement related to such Competing Transaction (provided that
for purposes of this Section 8.06(a)(iv), all references to “20%” in the definition of “Competing Transaction”
shall be deemed to be references to “50%”) and (C) all of the conditions set forth in Section 7.01 (other
than Section 7.01(a)) shall have been satisfied. The Company shall pay the Company Termination Fee (it being understood that in
no event shall the Company be required to pay the Company Termination Fee on more than one occasion): (x) in the case of termination
pursuant to clause (i), within five (5) Business Days after the date of termination, (y) in the case of termination pursuant to
clause (ii), immediately prior to, or concurrently with, such termination and (z) in the case of termination pursuant to clauses (iii)
and (iv) above, as promptly as practicable (but in any event within two (2) Business Days) following the entry by the Company
or any of its Subsidiaries into any definitive agreement in connection with such Competing Transaction. If the Company Termination
Fee is payable by the Company pursuant to this Section 8.06(a), the Company shall take, or cause to be taken, all actions and
do, or cause to be done, all things necessary, proper or advisable to fund payment of the Company Termination Fee to Parent in
accordance with this Section 8.06(a), including, but not limited to, causing its Subsidiaries to make available to the Company
any funds necessary, incurring, or causing its Subsidiaries to incur Indebtedness, and/or selling, or causing its Subsidiaries
to sell, assets, shares or securities of, or other equity interests in any Subsidiary, in each case, to the extent required.
(b) In
the event that:
(i) (A)
this Agreement is terminated by either Holdco or the Company pursuant to Section 8.02(a) or Section 8.02(b), (B) at the time of
such termination, any of the conditions set forth in Section 7.01 (other than Section 7.01(a)) shall not have been satisfied and
such non-satisfaction is not the result of the breach by the Company of any of its representations, warranties, covenants or other
agreements hereunder, (C) the condition to Closing set forth in Section 7.01(a) has been satisfied, and (D) the Company has confirmed
in writing to Holdco that each of the conditions set forth in Section 7.02 would be satisfied if the Closing were to occur immediately
prior to such termination;
(ii) this
Agreement is terminated by either Holdco or the Company pursuant to Section 8.02(d); or
(iii) this
Agreement is terminated by the Company pursuant to Section 8.03(a) or Section 8.03(b);
then Parent shall
as promptly as practicable, but in no event later than ten (10) Business Days following such termination, pay, or cause to be
paid, to a PRC Subsidiary of the Company designated by the Company the Parent Termination Fee (it being understood that in no
event shall Parent be required to pay the Parent Termination Fee on more than one occasion). “Parent Termination Fee”
means (x) in the case of Section 8.06(b)(i) or Section 8.06(b)(ii), an amount in RMB equal to $17,775,000 and (y) in the case
of Section 8.06(b)(iii), an amount in RMB equal to $88,873,000.
(c) In
the event that the Company fails to pay the Company Termination Fee, or Parent fails to pay the Parent Termination Fee, when due
and in accordance with the requirements of this Agreement, the Company or Parent, as the case may be, shall reimburse the other
party for all reasonable, out of pocket costs and expenses actually incurred or accrued by the other party (including, without
limitation, fees and expenses of counsel) in connection with the collection under and enforcement of this Section 8.06, together
with interest on such unpaid Company Termination Fee or Parent Termination Fee, as the case may be, commencing on the date that
the Company Termination Fee or Parent Termination Fee, as the case may be, became due, at the prime rate established by the Wall
Street Journal Table of Money Rates on such date plus 1.00%. Such collection expenses shall not otherwise diminish in any way
the payment obligations hereunder.
(d) Each
of the Company, Holdco and Merger Sub acknowledges that (i) the agreements contained in this Section 8.06 are an integral part
of the Transactions, (ii) the damages resulting from termination of this Agreement under circumstances where a Company Termination
Fee or Parent Termination Fee is payable are uncertain and incapable of accurate calculation and therefore, the amounts payable
pursuant to Section 8.06(a) or Section 8.06(b) are not a penalty but rather constitute amounts akin to liquidated damages in a
reasonable amount that will compensate Parent or the Company, as the case may be, for the efforts and resources expended and opportunities
foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the
Transactions, and (iii) without the agreements contained in this Section 8.06, the parties hereto would not have entered into
this Agreement.
(e) Notwithstanding
anything to the contrary in this Agreement, except for an order of specific performance against Holdco and/or Merger Sub to the
extent permitted by Section 9.08, in the event that Holdco or Merger Sub fails to effect the Closing for any reason or no reason
or they otherwise breach this Agreement (whether willfully, intentionally, unintentionally or otherwise) or otherwise fail to
perform hereunder (whether willfully, intentionally, unintentionally or otherwise), then the Company’s right to terminate
this Agreement and receive the Parent Termination Fee pursuant to Section 8.06(b), the expenses pursuant to Section 8.06(c) and
any amounts pursuant to Section 6.07(d) or Section 6.09(c), and the Company’s remedies under Section 9.08 shall be the sole
and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of any Group Company and all members of the
Company Group against (i) Holdco, Merger Sub or Parent, (ii) the former, current and future holders of any equity, partnership
or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members,
managers, general or limited partners, stockholders, assignees of Holdco, Merger Sub or Parent, (iii) any lender or prospective
lender, lead arranger, arranger, agent or representative of or to Holdco, Merger Sub or Parent or (iv) any holders or future holders
of any equity, stock, partnership or limited liability company interest, controlling persons, directors, officers, employees,
agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders, assignees of any of the foregoing
(clauses (i) – (iv), collectively, the “Holdco Group”), for
any loss or damage suffered as a result of any breach of any representation, warranty, covenant or agreement (whether willfully,
intentionally, unintentionally or otherwise) or failure to perform hereunder (whether willfully, intentionally, unintentionally
or otherwise) or other failure of the Merger to be consummated (whether willfully, intentionally, unintentionally or otherwise).
For the avoidance of doubt, without limitation to the Company’s remedies pursuant to Section 9.08, (A) neither Holdco nor
any member of the Holdco Group shall have any liability for monetary damages of any kind or nature or arising in any circumstance
in connection with this Agreement or any of the Transactions (including the Debt Commitment Letter) other than the payment of
the Parent Termination Fee pursuant to Section 8.06(b), the expenses pursuant to Section 8.06(c) and any amounts pursuant to Section
6.07(d) or Section 6.09(c), and (B) in no event shall any Group Company, the direct or indirect shareholders of the Company or
any other Group Company, or any of their respective Affiliates, directors, officers, employees, members, managers, partners, representatives,
advisors or agents of the foregoing (collectively, the “Company Group”),
seek, or permit to be sought, on behalf of any member of the Company Group, any monetary damages from any member of the Holdco
Group in connection with this Agreement or any of the Transactions (including the Debt Commitment Letter), other than (without
duplication) from Holdco or Merger Sub to the extent provided in Section 8.06(b), Section 8.06(c), Section 6.07(d) or Section
6.09(c). In no event shall the Company or any member of the Company Group be entitled to seek the remedy of specific performance
with respect to the obligation of Holdco or Merger Sub to consummate the Closing, and with respect to a failure of Holdco or Merger
Sub to consummate the Closing, the Company’s sole remedy shall be limited to the payment of the Parent Termination Fee pursuant
to Section 8.06(b), the expenses pursuant to Section 8.06(c) and any amounts pursuant to Section 6.07(d) or Section 6.09(c). This
Section 8.06(e) was specifically bargained for and reflected in the Merger Consideration and is intended to be for the benefit
of, and shall be enforceable by, each member of the Holdco Group.
(f) Each
of the Company, Parent, Holdco and Merger Sub acknowledges that, in connection with the execution of this Agreement, Parent has
delivered to the Company a performance guarantee issued by the applicable financial institution named therein (the “Performance
Guarantee”) in favor of Suzhou Hengchuang Software Co., Ltd., a wholly owned Subsidiary of the Company incorporated
in the PRC (the “Guarantee Beneficiary”), and that in the event and to the extent that Parent fails to pay
the full amount of the Parent Termination Fee when due and in accordance with Section 8.06(b), the Guarantee Beneficiary (upon
the written instruction by the Special Committee or the Company Board upon the recommendation of the Special Committee) will have
the right to the payment of any unpaid amount of the Parent Termination Fee in RMB up to the maximum amount specified therein,
upon delivery of a demand to such financial institution named therein no later than November 3, 2016, on the terms and subject
to the conditions of the Performance Guarantee.
Article
IX
GENERAL
PROVISIONS
Section 9.01 Non-Survival
of Representations, Warranties and Agreements.
The representations,
warranties and agreements in this Agreement and in any certificate delivered pursuant hereto shall terminate at the earlier of
the Effective Time and termination of this Agreement pursuant to Article VIII, except that the agreements set forth in Articles
I and II and Section 6.05, Section 6.07(c), Section 6.07(d), Section 6.09(b), Section 6.09(c) and Section 6.13 and this Article
IX shall survive the Effective Time.
Section 9.02 Notices.
All notices, requests,
claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly
given upon receipt) by delivery in person, by telecopy or by registered or certified mail (postage prepaid, return receipt requested)
to the respective parties 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 9.02):
|
if to Parent, Holdco or Merger Sub: |
|
|
|
BTG Hotels (Group) Co., Ltd. |
|
51 Fuxingmennei Avenue |
|
Xicheng District, Beijing 100031 |
|
People’s Republic of China |
|
Attention: |
Rungang Zhang |
|
Facsimile: |
zhuangrungang@btg.com.cn |
|
|
|
|
with a copy to: |
|
|
|
Skadden, Arps, Slate, Meagher & Flom |
|
42/F Edinburgh Tower, The Landmark |
|
15 Queen’s Road Central |
|
Hong Kong |
|
Attention: |
Z. Julie Gao |
|
Email: |
julie.gao@skadden.com |
|
|
|
|
if to the Company: |
|
|
|
Homeinns Hotel Group |
|
No. 124 Caobao Road |
|
Xunhui District, Shanghai 200235 |
|
People’s Republic of China |
|
Attention: |
Chief Financial Officer |
|
Facsimile: |
+86-21-6483-5661 |
|
|
|
|
with a copy to: |
|
|
|
O’Melveny & Myers LLP |
|
37th Floor, Yin Tai Centre, Office Tower |
|
No. 2 Jianguomenwai Avenue, Beijing 100022 |
|
People’s Republic of China |
|
Attention: |
Ke Geng |
|
Email: |
kgeng@omm.com |
|
|
|
|
if to the Special Committee: |
|
|
|
Homeinns Hotel Group |
|
No. 124 Caobao Road |
|
Xunhui District, Shanghai 200235 |
|
People’s Republic of China |
|
Attention: |
Special Committee |
|
Facsimile: |
+86-21-6483-5661 |
|
with a copy to: |
|
|
|
Simpson Thacher & Bartlett LLP |
|
ICBC Tower – 35th Floor |
|
3 Garden Road |
|
Central, Hong Kong |
|
Attention: |
Kathryn King Sudol |
|
E-mail: |
ksudol@stblaw.com |
Section 9.03 Certain
Definitions.
(a) For
purposes of this Agreement:
“2014
Annual Report” means the Company’s annual report on Form 20-F for the fiscal year ended December 31, 2014 filed
with the SEC on April 24, 2015, including the exhibits thereto.
“Affiliate”
of a specified person means a person who, directly or indirectly through one or more intermediaries, controls, is controlled by,
or is under common control with, such specified person.
“Anticorruption
Laws” means Laws relating to anti-bribery or anticorruption (governmental or commercial), which apply to the business
and dealings of any Group Company, including, without limitation, laws that prohibit the corrupt payment, offer, promise or authorization
of the payment or transfer of anything of value (including gifts or entertainment), directly or indirectly, to any foreign government
official, foreign government employee or commercial entity to obtain a business advantage such as, without limitation, the PRC
Law on Anti-Unfair Competition adopted on September 2, 1993, the Interim Rules on Prevention of Commercial Bribery issued by SAIC
on November 15, 1996, the U.S. Foreign Corrupt Practices Act of 1977, as amended from time to time, and all applicable Laws enacted
to implement the OECD Convention on Combating Bribery of Foreign Officials in International Business Transactions.
“Business
Day” means any day on which the principal offices of the SEC in Washington, D.C. are open to accept filings, or, in
the case of determining a date when any payment is due, any day on which banks are not required or authorized to close in New
York, Hong Kong and Beijing.
“Buyer
Group Contracts” means the Support Agreement and any other Contracts relating to the Transactions entered into between
or among any Buyer Group Parties, including all amendments thereto or modifications thereof.
“Buyer
Group Parties” means Parent, Holdco, Merger Sub, each of the Rollover Shareholders and the respective Affiliates of
each of the foregoing, excluding the Company or any of its Subsidiaries.
“Company
Convertible Notes” means the Company’s 2.00% Convertible Senior Notes due December 15, 2015, issued pursuant to
the Indenture, dated as of December 21, 2010, between the Company, as issuer, and The Bank of New York Mellon, as trustee.
“Company
Disclosure Schedule” means the disclosure schedule delivered by the Company to and accepted by Holdco and Merger Sub
on the date hereof.
“Company
Employee Plan” means any plan, program, policy, practice, Contract or other arrangement providing for compensation,
severance, termination pay, deferred compensation, performance awards, share or share-related awards, fringe benefits or other
employee benefits or remuneration of any kind, whether written, unwritten or otherwise, that is or has been maintained, contributed
to or required to be contributed to by any Group Company for the benefit of any current or former employee, director or officer
of such Group Company, other than any employment Contract or compensatory agreement with a current or former employee, director
or officer which is not maintained for the benefit of any group or class of employees.
“Company
Material Adverse Effect” means any event, circumstance, change or effect that, individually or in the aggregate with
all other events, circumstances, changes and effects, that would, or would reasonably be expected to, have a material adverse
effect on the business, financial condition, assets, liabilities or results of operations of the Company and the Subsidiaries
taken as a whole; provided, however, that in no event shall any of the following, either alone or in combination,
constitute, or be taken into account in determining whether there has been or would be, a Company Material Adverse Effect: (i)
changes in the financial, credit or other securities or capital markets, or in general economic, business, regulatory, legislative
or political conditions, including changes in interest rates and foreign exchange rates, or in any of the industries in which
the Company or any of its Subsidiaries operate (so long as such changes do not adversely affect the Company and its Subsidiaries,
taken as a whole, in a materially disproportionate manner relative to other similarly situated participants in the industries
or markets in which they operate), (ii) the public announcement of or the performance of this Agreement by the Company, the pendency
or consummation of the Transactions, or the identity of any of the Buyer Group Parties as the acquiror of the Company, including
the impact or effect thereof on the relationships, contractual or otherwise, of the Company or any of its Subsidiaries with any
employees, customers, suppliers or partners, (iii) natural disaster or any outbreak or escalation of hostilities or war or any
act of terrorism or other force majeure events, (iv) changes in any applicable Laws or applicable accounting regulations or principles
(including U.S. GAAP), or the interpretation or enforcement thereof, so long as such changes do not adversely affect the Company
and its Subsidiaries, taken as a whole, in a materially disproportionate manner relative to other similarly situated participants
in the industries or markets in which they operate, (v) any change in the price or trading volume of the ADSs or any failure to
meet any financial projections, forecasts or forward-looking statements (provided that the facts or occurrences giving
rise to or contributing to such change or failure, as applicable, that are not otherwise excluded from the definition of “Company
Material Adverse Effect” may be taken into account in determining whether there has been a Company Material Adverse Effect),
(vi) any Action in respect of this Agreement or the Transactions brought or commenced by any current or former shareholder of
the Company (on their own behalf or on behalf of the Company), and (vii) any action taken, or failure to take action, by the Company
or any of its Subsidiaries that Holdco has consented to or requested in writing.
“Company
Option” means each option to purchase Shares under the Share Incentive Plan.
“Company
Restricted Share Unit” means each restricted share unit granted under the Share Incentive Plan.
“Company
Share Awards” means Company Options, Company Restricted Share Units and any other awards granted under the Share Incentive
Plan.
“Company
Triggering Event” shall be deemed to have occurred if (i) there shall have been a Change in the Company Recommendation;
(ii) the Company Board shall have approved or recommended, or publicly proposed to approve or recommend to the shareholders
of the Company, an offer or proposal regarding a Competing Transaction or shall have approved, recommended or entered into any
Alternative Acquisition Agreement (other than a confidentiality agreement entered into in compliance with Section 6.04(b)); or
(iii) a tender offer or exchange offer by a third party for 20% or more of the outstanding shares of the Company is commenced,
and the Company Board fails to recommend against acceptance of such tender offer or exchange offer by its shareholders (including
by taking no position with respect to the acceptance of such tender offer or exchange offer by its shareholders) within ten (10)
Business Days after commencement; provided that a “stop, look and listen” communication by the Company Board
or the Special Committee to shareholders of the Company pursuant to Rule 14d-9(f) of the Exchange Act shall not be deemed to constitute
a Company Triggering Event.
“Confidentiality
Agreement” means the confidentiality agreement by and among the Company, Parent, Poly Victory Investments Limited, Ctrip.com
International, Ltd., Mr. Neil Nanpeng Shen, Mr. James Jianzhang Liang and Mr. David Jian Sun, dated as of June 30, 2015, as amended
or modified from time to time in accordance with the terms thereof.
“Confidential
Information” means any confidential or proprietary information, disclosed prior to or after the date hereof by one party
or any of its Affiliates to the other party or any of its Affiliates, concerning the disclosing party’s business, financial
condition, proprietary technology, research and development or other confidential matters, including any confidential or proprietary
information provided under this Agreement, any other Transaction Documents, or any of the exhibits or schedule attached hereto,
provided that Confidential Information shall not include any information which (i) is or becomes generally available to the public
other than as a result of a disclosure by the receiving party or its Representatives in violation of Section 9.09 or other obligation
of confidentiality, (ii) was available to the receiving party on a non-confidential basis prior to its disclosure by the disclosing
party or the disclosing party’s Representatives, or (iii) becomes available to the receiving party on a non-confidential
basis from a Person (other than the disclosing party or the disclosing party’s Representatives) who is not, or is reasonably
believed by the receiving party not, prohibited from disclosing such information to the receiving party by a legal, contractual
or fiduciary obligation to the disclosing party or any of the disclosing party’s Representatives.
“Contract”
means any note, bond, mortgage, indenture, deed of trust, contract, agreement, lease, license, permit, franchise or other instrument.
“control”
(including the terms “controlled by” and “under common control with”) means the possession,
directly or indirectly, or as trustee or executor, of the power to direct or cause the direction of the management and policies
of a person, whether through the ownership of voting securities or the possession of voting power, as trustee or executor, by
contract or credit arrangement or otherwise.
“Data
Room” means the virtual data room containing written documents and information relating to the Company and its Subsidiaries
made available by the Company on the Merrill Datasite under the name “House VDR” and to which Holdco and its representatives
had access on or prior to the date of this Agreement and with respect to which an electronic copy of all of the written documents
and information therein shall be provided to Holdco within five (5) calendar days after the date of this Agreement in a USB key
or DVD.
“Environmental
Law” means any applicable PRC local, provincial or national Law relating to (a) the protection of health, safety (but
solely to the extent relating to exposure to Hazardous Substances) or the environment or (b) the handling, use, transportation,
disposal, release or threatened release of any Hazardous Substance.
“Exercise
Price” means, with respect to any Company Option, the applicable exercise price per Share underlying such Company Option.
“Excluded
Shares” means, collectively, (i) Shares held by the Company or any of its Subsidiaries; and (ii) Shares (including ADSs
representing such Shares) held by the Depositary and reserved for issuance and allocation pursuant to the Share Incentive Plan.
“Founder
Parties” means Mr. Yi Liu, Mr. Neil Nanpeng Shen, Mr. James Jianzhang Liang and Mr. David Jian Sun.
“Government
Entity” means (i) any national, federal, state, county, municipal, local or foreign government or any entity exercising
executive, legislative, judicial, regulatory, taxing or administrative functions of or pertaining to government, (ii) any public
international organization, (iii) any agency, division, bureau, department, or other political subdivision of any government,
entity or organization described in the foregoing clauses (i) or (ii) of this definition, (iv) any company, business, enterprise,
or other entity owned, in whole or in part, or controlled by any government, entity, organization or other person described in
the foregoing clauses (i), (ii) or (iii) of this definition, or (v) any political party.
“Government
Official” means (i) any official, officer, employee or representative of, or any person acting in an official capacity
for or on behalf of, any Government Entity, (ii) any political party or party official or candidate for political office or (iii)
any company, business, enterprise or other entity owned, in whole or in part, or controlled by any person described in the foregoing
clause (i) or (ii) of this definition.
“Group
Company” means any of the Company or any of its Subsidiaries.
“Hazardous
Substance” means any chemical, pollutant, waste or substance that is (a) listed, classified or regulated under any Environmental
Law as hazardous substance, toxic substance, pollutant, contaminant or oil or (b) any petroleum product or by product, asbestos
containing hazardous material, polychlorinated biphenyls or radioactive material.
“Holdco
Disclosure Schedule” means the disclosure schedule delivered by Holdco and Merger Sub to and accepted by the Company
on the date hereof.
“Indebtedness”
means, with respect to any person, (a) all indebtedness of such person, whether or not contingent, for borrowed money, (b) all
obligations of such person for the deferred purchase price of property or services, (c) all obligations of such person evidenced
by notes, bonds, debentures or other similar instruments, (d) all obligations of such person under currency, interest rate
or other swaps, and all hedging and other obligations of such person under other derivative instruments, (e) all indebtedness
created or arising under any conditional sale or other title retention agreement with respect to property acquired by such person
(even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession
or sale of such property), (f) all obligations of such person as lessee under leases that have been or should be, in accordance
with GAAP, recorded as capital leases, (g) all obligations, contingent or otherwise, of such person under acceptance, letter
of credit or similar facilities, (h) all obligations of such person to purchase, redeem, retire, defease or otherwise acquire
for value any share capital of such person or any warrants, rights or options to acquire such share capital, valued, in the case
of redeemable preferred shares, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid
dividends, (i) all Indebtedness of others referred to in clauses (a) through (h) above guaranteed directly or indirectly
in any manner by such person, and (j) all Indebtedness referred to in clauses (a) through (h) above secured by (or for which
the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Liens on property (including
accounts and contract rights) owned by such person, even though such person has not assumed or become liable for the payment of
such Indebtedness.
“Insolvent”
means, with respect to any person (a) the present fair saleable value of such person’s assets is less than the amount required
to pay such person’s total Indebtedness, (b) such person is unable to pay its debts and liabilities, subordinated, contingent
or otherwise, as such debts and liabilities become absolute and matured, (c) such person intends to incur or believes that it
will incur debts that would be beyond its ability to pay as such debts mature, or (d) such person has unreasonably small capital
with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.
“Intellectual
Property” means (a) United States, non-United States and international patents, patent applications and statutory
invention registrations, (b) trademarks, service marks, trade dress, logos, trade names, corporate names and other source
identifiers, and registrations and applications for registration thereof, (c) copyrightable works, copyrights, and registrations
and applications for registration thereof, (d) confidential and proprietary information, including trade secrets and know-how,
and (e) rights of privacy, publicity and endorsement.
“knowledge”
means, with respect to the Company, the actual knowledge of the individuals listed in Section 9.03(a) of the Company Disclosure
Schedule, and with respect to Holdco and Merger Sub, the actual knowledge of the individuals listed in Section 9.03(a) of the
Holdco Disclosure Schedule.
“Leased
Real Property” shall mean all leasehold or subleasehold estates and other rights to use or occupy any land, buildings,
structures, improvements, fixtures or other interest in real property held by any Group Company.
“Leases”
shall mean all leases, subleases, licenses, concessions and other agreements (written or oral), including all amendments, extensions,
renewals, guarantees and other agreements with respect thereto, pursuant to which any Group Company under which the Company or
any of its Subsidiaries uses or occupies or has the right to use or occupy, now or in the future, any Leased Real Property, including
the right to all security deposits and other amounts and instruments deposited by or on behalf of any Group Company.
“Liens”
means any security interest, pledge, hypothecation, mortgage, lien (including environmental and Tax liens), violation, charge,
lease, license, encumbrance, servient easement, adverse claim, reversion, reverter, preferential arrangement, restrictive covenant,
condition or restriction of any kind, including any restriction on the use, voting, transfer, receipt of income or other exercise
of any attributes of ownership.
“Owned
Real Property” shall mean all land, together with all buildings, structures, improvements and fixtures located thereon,
and all easements and other rights and interests appurtenant thereto, owned by any Group Company.
“Permitted
Encumbrances” shall mean, with respect to each Owned Real Property and Leasehold Improvement (as the case may be): (a)
real estate Taxes, assessments and other governmental levies, fees or charges imposed with respect to such real property which
are not due and payable as of the Closing Date, or which are being contested in good faith and for which appropriate reserves
have been established in accordance with U.S. GAAP, (b) mechanics liens and similar liens for labor, materials or supplies provided
with respect to such real property incurred in the ordinary course of business for amounts which are not due and payable and which
shall be paid in full and released at Closing, (c) zoning, building codes and other land use Laws regulating the use or occupancy
of such real property or the activities conducted thereon which are imposed by any Governmental Entity having jurisdiction over
such real property which are not violated by the current use or occupancy of such real property or the operation of the business
thereon, (d) easements, covenants, conditions, restrictions and other similar matters of record affecting title to such real property
which do not or would not materially impair the use or occupancy of such real property in the operation of the business conducted
thereon, (e) pledges or deposits required by applicable law to secure obligations under workers' compensation laws or similar
legislation, (f) pledges and deposits to secure the performance of bids, trade contracts, leases (but only as to the security
deposits described in the Leases), surety and appeal bonds, performance bonds and other obligations of a similar nature, in each
case in the ordinary course of business, and (g) any other Liens that have been incurred or suffered by operation of law that
would not, individually or in the aggregate, have a material adverse effect with respect to the Company and its Subsidiaries,
taken as a whole or on the use or operation of the property subject thereto.
“person”
means an individual, corporation, partnership, limited partnership, limited liability company, syndicate, person (including, without
limitation, a “person” as defined in Section 13(d)(3) of the Exchange Act), trust, association or entity or government,
political subdivision, agency or instrumentality of a government.
“PRC
Anti-Monopoly Law” means the PRC Anti-Monopoly Law adopted on August 1, 2008.
“Requisite
Regulatory Approvals” means the filing with the National Development and Reform Commission, the approval by the State-owned
Assets Supervision and Administration Commission of the Beijing Municipal Government and the clearance by the PRC Ministry of
Commerce under the PRC Anti-Monopoly Law, in each case, with respect to the consummation of the Transactions by Parent, Holdco
and Merger Sub.
“RMB”
means the legal currency of the PRC.
“SEC”
means the U.S. Securities and Exchange Commission.
“SAFE
Circular 7” means Circular 7, issued by SAFE on February 15, 2012, titled “Notice of Issues Related to the Foreign
Exchange Administration for Domestic Individuals Participating in Stock Incentive Plan of Overseas Listed Company,” or any
successor rule or regulation under PRC Law.
“SAFE
Circular 75” means Circular 75, issued by SAFE on October 21, 2005, titled “Notice Regarding Certain Administrative
Measures on Financing and Inbound Investments by PRC residents Through Offshore Special Purpose Vehicles,” effective as
of November 1, 2005, and replaced by SAFE Circular 37 on July 4, 2014.
“SAFE
Circular 37” means Circular 37, issued by SAFE on July 4, 2014, titled “Notice of the State Administration of
Foreign Exchange on the Administration of Foreign Exchange Involved in Overseas Investment, Financing and Round-Trip Investment
Conducted by Domestic Residents through Special Purpose Vehicles,” effective July 4, 2014, or any successor rule or regulation
under PRC Law.
“SAFE
Circular 78” means Circular 78, issued by SAFE on March 28, 2007, titled “Notice of the SAFE on Foreign Exchange
Administration of the Involvement of Domestic Individuals of the Employee Stock Ownership Plans and Share Option Schemes of Overseas
Listed Companies,” effective as of March 28, 2007 and replaced by SAFE Circular 7 on February 15, 2012.
“Share
Incentive Plan” means the Amended and Restated 2006 Share Incentive Plan of the Company, effective November 3, 2009.
“Social
Security Benefits” means any social insurance, pension insurance benefits, medical insurance benefits, work-related
injury insurance benefits, maternity insurance benefits, unemployment insurance benefits and public housing reserve fund benefits
or similar benefits, in each case as required by any applicable Law or contractual arrangements.
“Subsidiary”
means, with respect to any party, any person of which (x) such party or any other Subsidiary of such party is a general partner
or (y) at least a majority of the securities (or other interests having by their terms ordinary voting power to elect a majority
of the board of directors or other performing similar functions with respect to such corporation or other organization) is, directly
or indirectly, owned or controlled by such party or by any one or more of its Subsidiaries, or by such party and one or more of
its Subsidiaries.
“Taxes”
means any and all taxes, fees, levies, duties, tariffs, imposts and other charges of any kind (together with any and all interest,
penalties, additions to tax and additional amounts imposed with respect thereto) imposed by any Governmental Authority or taxing
authority, including, without limitation: taxes or other charges on or with respect to income, franchise, windfall or other profits,
gross receipts, occupation, property, real estate, deed, land use, sales, use, capital stock, payroll, severance, employment (including
withholding obligations imposed on employer/payer), social security, workers’ compensation, unemployment compensation or
net worth; taxes or other charges in the nature of excise, withholding (as payor or payee), ad valorem, stamp, transfer, value-added
or gains taxes; license, registration and documentation fees; and customers’ duties, tariffs and similar charges.
“Third
Party” means any person or “group” (as defined under Section 13(d) of the Exchange Act) of persons,
other than Holdco or any of its Affiliates or Representatives.
“Unvested
Company Option” means any Company Option that is not a Vested Company Option.
“Vested
Company Option” means any Company Option that shall have become vested on or prior to the Closing Date in accordance
with the terms of the Share Incentive Plan and the applicable award agreement pursuant to which such Company Option was granted.
(b) The
following terms have the meaning set forth in the Sections set forth below:
Defined Term |
|
Location of Definition |
|
|
|
Action |
|
Section 3.10 |
ADS |
|
Section 2.01(b) |
ADSs |
|
Section 2.01(b) |
Agreement |
|
Preamble |
Alternative Acquisition Agreement |
|
Section 6.04(c) |
Alternative Financing |
|
Section 6.07(a) |
Arbitrator |
|
Section 9.10(b) |
Bankruptcy and Equity Exception |
|
Section 3.04(a) |
Change in the Company Recommendation |
|
Section 6.04(c) |
CICL |
|
Recitals |
Closing |
|
Section 1.02 |
Closing Date |
|
Section 1.02 |
Company |
|
Preamble |
Company Board |
|
Recitals |
Company Employees |
|
Section 6.18 |
Company Group |
|
Section 8.06(e) |
Company Licensed Intellectual Property |
|
Section 3.13(b) |
Company Owned Intellectual Property |
|
Section 3.13(a) |
Company Recommendation |
|
Section 3.04(b) |
Company SEC Reports |
|
Section 3.07(a) |
Company Shareholders’ Meeting |
|
Section 6.02(a) |
Company Termination Fee |
|
Section 8.06(a) |
Company-Related Information |
|
Section 6.09(b) |
Competing Transaction |
|
Section 6.04(f) |
Damages |
|
Section 6.05(c) |
Debt Commitment Letter |
|
Section 4.05(a) |
Debt Financing |
|
Section 4.05(a) |
Debt Financing Sources |
|
Section 4.05(a) |
Deposit Agreement |
|
Section 2.06 |
Depositary |
|
Section 2.06 |
Dissenting Shareholders |
|
Section 2.03(a) |
Dissenting Shares |
|
Section 2.03(a) |
Effective Time |
|
Section 1.03 |
Environmental Permits |
|
Section 3.17 |
Exchange Act |
|
Section 3.05(b) |
Exchange Fund |
|
Section 2.04(a) |
Financial Advisor |
|
Section 3.04(c) |
Governmental Authority |
|
Section 3.05(b) |
Guarantee Beneficiary |
|
Section 8.06(f) |
HKIAC |
|
Section 9.10(b) |
Holdco |
|
Preamble |
Holdco Group |
|
Section 8.06(e) |
Improvements |
|
Section 3.12(d) |
Indemnified Parties |
|
Section 6.05(b) |
Law |
|
Section 3.05(a) |
Material Company Permits |
|
Section 3.06(a) |
Material Contracts |
|
Section 3.16(a) |
Merger |
|
Recitals |
Merger Consideration |
|
Section 2.04(a) |
Merger Sub |
|
Preamble |
Nasdaq |
|
Section 3.05(b) |
Notice of Superior Proposal |
|
Section 6.04(d) |
Order |
|
Section 7.01(b) |
Parent |
|
Preamble |
Parent Shareholder Approval |
|
Section 4.03 |
Parent Shareholders Meeting |
|
Section 4.03 |
Parent Termination Fee |
|
Section 8.06(b) |
Paying Agent |
|
Section 2.04(a) |
Per ADS Merger Consideration |
|
Section 2.01(b) |
Per Share Merger Consideration |
|
Section 2.01(a) |
Performance Guarantee |
|
Section 8.06(f) |
Plan of Merger |
|
Section 1.03 |
PRC |
|
Section 3.06(a) |
Proxy Statement |
|
Section 6.01 |
RCA |
|
Section 2.02(c) |
Record ADS Holders |
|
Section 6.02(a) |
Reorganization Report |
|
Section 3.08(a) |
Representatives |
|
Section 6.03 |
Requisite Company Vote |
|
Section 3.04(a) |
Rollover Shareholders |
|
Recitals |
Rollover Shares |
|
Recitals |
SAFE |
|
Section 3.06(a) |
SAFE Rules and Regulations |
|
Section 3.06(c) |
SAIC |
|
Section 3.06(a) |
Securities Act |
|
Section 3.07(a) |
Share |
|
Section 2.01(a) |
Share Certificates |
|
Section 2.04(b) |
Shares |
|
Section 2.01(a) |
Special Committee |
|
Recitals |
Superior Proposal |
|
Section 6.04(g) |
Support Agreement |
|
Recitals |
Surviving Company |
|
Section 1.01 |
Takeover Statute |
|
Section 3.20 |
Termination Date |
|
Section 8.02(a) |
Transactions |
|
Recitals |
U.S. GAAP |
|
Section 3.07(b) |
Section 9.04 Severability.
If any term or
other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law, or public policy, all
other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or
legal substance of the Transactions is not affected in any manner adverse to any party. Upon such determination that any term
or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order
that the Transactions be consummated as originally contemplated to the fullest extent possible.
Section 9.05 Entire
Agreement; Assignment.
This Agreement
(including the Exhibits and Schedules hereto), the Confidentiality Agreement and the Support Agreement constitute the entire agreement
among the parties with respect to the subject matter hereof and supersede all prior agreements and undertakings, both written
and oral, among the parties, or any of them, with respect to the subject matter hereof. This Agreement shall not be assigned (whether
pursuant to a merger, by operation of law or otherwise), except that Holdco and Merger Sub may assign all or any of their rights
and obligations hereunder to any persons providing the Debt Financing pursuant to the terms thereof (solely to the extent necessary
for purposes of creating a security interest herein or otherwise assigning this Agreement or any rights hereunder as collateral
in respect of such Debt Financing), provided that no such assignment shall relieve the assigning party of its obligations
hereunder if such assignee does not perform such obligations.
Section 9.06 Interpretation.
When a reference
is made in this Agreement to a Section, Article, Annex or Exhibit, such reference shall be to a Section, Article, Annex or Exhibit
of this Agreement unless otherwise indicated. The table of contents and headings contained in this Agreement or in any Annex or
Exhibit are for convenience of reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Any capitalized
terms used in any Exhibit but not otherwise defined therein shall have the meaning set forth in this Agreement. All Annexes and
Exhibits annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth herein.
The word “including” and words of similar import when used in this Agreement will mean “including, without limitation,”
unless otherwise specified.
Section 9.07 Parties
in Interest.
This Agreement
shall be binding upon and inure solely to the benefit of each party hereto, and nothing in this Agreement, express or implied,
is intended to or shall confer upon any other person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement, other than Section 6.05, Section 6.09(c) or Section 8.06(e) (which are intended to be for the benefit of the
persons covered thereby and may be enforced by such persons); provided, however, that in no event shall any holders
of Shares (including Shares represented by ADSs) or holders of Company Share Awards, in each case in their capacity as such, have
any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Section 9.08 Specific
Performance.
The parties hereto
agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with
the terms hereof and that each party shall be entitled to specific performance of the terms hereof (including the other parties’
obligation to consummate the Transactions, subject in each case to the terms and conditions of this Agreement), including an injunction
or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each party hereby, to
the extent permitted under all applicable Laws, waives (i) any defenses in any action for specific performance, including the
defense that a remedy at law would be adequate and (ii) any requirement under any Law to post a bond or other security as a prerequisite
to obtaining equitable relief. If any party brings any Action to enforce specifically the performance of the terms and provisions
hereof by any party, the Termination Date shall automatically be extended by (x) the amount of time during which such Action is
pending, plus twenty (20) Business Days or (y) such other time period established by the court presiding over such Action. Notwithstanding
the foregoing or anything herein to the contrary, the Company shall not be entitled to seek an injunction, specific performance
or other equitable relief to enforce Holdco’s and Merger Sub’s obligations to consummate the Merger and effect the
Closing.
Section 9.09 Confidentiality.
(a) Prior
to and during the term of this Agreement, each Party has disclosed or may disclose to the other party Confidential Information.
Subject to Section 9.09, unless otherwise agreed to in writing by the disclosing party, the receiving party shall (i) except as
required by Law or requested by any Governmental Authority, keep confidential and not disclose or reveal any Confidential Information
to any Person other than the receiving party’s Representatives (A) who are actively and directly participating in the consummation
of the Transactions or who otherwise need to know the Confidential Information for the Transactions and (B) who have agreed in
writing, or whom the receiving party will cause, to observe the terms of this Section 9.09, and (ii) not to use Confidential Information
for any purpose other than in connection with the Transactions. Each Party acknowledges that such Party shall be responsible for
any breach of the terms of this Section 9.09 by such Party or its Representatives (other than its Representatives who have agreed
in writing to observe the terms of this Section 9.09), and each Party agrees, at its sole expense, to take all reasonable measures
to restrain its Representatives from prohibited or unauthorized disclosure or use of the Confidential Information.
(b) In
the event that the receiving party or any of its Representatives is required by Law or requested by any Governmental Authority
to disclose any the Confidential Information, the receiving party will provide the disclosing party with prompt notice of such
request or requirement in order to enable the disclosing party to seek an appropriate protective order or other remedy (and if
the disclosing party seeks such an order, the receiving party will provide such cooperation as the disclosing party shall reasonably
request), to consult with the receiving party with respect to the disclosing party’s taking steps to resist or narrow the
scope of such request or legal process, or to waive compliance, in whole or in part, with the terms of this Section 9.09. In the
event that such protective order or other remedy is not obtained, or the disclosing party waives compliance, in whole or in part,
with the terms of this Section 9.09, the receiving party or its Representative will disclose only that portion of the Confidential
Information that the receiving party is advised by counsel is legally required to be disclosed and will use such party’s
reasonable best efforts, at the disclosing party’s sole expense, to ensure that all Confidential Information so disclosed
will be accorded confidential treatment.
Section 9.10 Governing
Law; Dispute Resolution.
(a) This
Agreement shall be interpreted, construed and governed by and in accordance with the Laws of the State of New York without regard
to the conflicts of law principles thereof, 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), the rights set forth in Section 238 of the CICL with
respect to any Dissenting Shares, the fiduciary or other duties of the Company Board and the board of directors of Merger Sub
and the internal corporate affairs of the Company and Merger Sub.
(b) Subject
to Section 9.08 and the last sentence of this Section 9.10(b), any disputes, actions and proceedings against any party or arising
out of or in any way relating to this Agreement shall be submitted to the Hong Kong International Arbitration Centre (“HKIAC”)
and resolved in accordance with the Arbitration Rules of HKIAC in force at the relevant time and as may be amended by this Section
9.10. 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 9.11 Amendment.
This Agreement
may be amended by the parties hereto by action taken (a) in the case of Holdco and Merger Sub, by or on behalf of their respective
boards of directors and (b) in the case of the Company, by or on behalf of the Company Board acting upon the recommendation of
the Special Committee, at any time prior to the Effective Time; provided, however, that, after the approval of this
Agreement and the Transactions by the shareholders of the Company, no amendment may be made that would reduce the amount or change
the type of consideration into which each Share shall be converted upon consummation of the Merger. This Agreement may not be
amended except by an instrument in writing signed by each of the parties hereto.
Section 9.12 Waiver.
At any time prior
to the Effective Time, any party hereto may by action taken (a) in the case of Holdco and Merger Sub, by or on behalf of their
respective boards of directors and (b) in the case of the Company, by or on behalf of the Company Board acting upon the recommendation
of the Special Committee, (i) extend the time for the performance of any obligation or other act of any other party hereto,
(ii) waive any inaccuracy in the representations and warranties of any other party contained herein or in any document delivered
pursuant hereto and (iii) waive compliance with any agreement of any other party or any condition to its own obligations
contained herein. Any such extension or waiver shall be valid if set forth in an instrument in writing signed by the party or
parties to be bound thereby. No failure or delay by any party in exercising any right, power or privilege hereunder 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 9.13 Counterparts.
This Agreement
may be executed and delivered (including by facsimile transmission) in one or more counterparts, and by the different parties
hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
IN WITNESS WHEREOF,
Holdco, Merger Sub and the Company have caused this Agreement to be executed as of the date first written above by their respective
officers thereunto duly authorized.
|
BTG HOTELS GROUP (HONGKONG) HOLDINGS CO., LIMITED |
|
|
|
|
By: |
/s/ Zhang Rungang |
|
Name: Zhang Rungang |
|
Title: Director |
|
|
|
BTG HOTELS GROUP (CAYMAN) HOLDING CO., LTD |
|
|
|
By: |
/s/ Zhang Rungang |
|
Name: Zhang Rungang |
|
Title: Director |
|
|
|
HOMEINNS HOTEL GROUP |
|
|
|
By: |
/s/ Kenneth Gaw |
|
Name: Kenneth Gaw |
|
Title: Director |
[Signature Page to Merger Agreement]
|
Solely for purposes of Section 6.02(e), Section 6.08, Section 6.09, Section 8.06, Section 9.09 and Section
9.10: |
|
|
|
BTG HOTELS (GROUP) CO., LTD. |
|
|
|
|
By: |
/s/ Zhang Rungang |
|
Name: Zhang Rungang |
|
Title: Chairman of the board of directors |
[Signature Page
to Merger Agreement]
ANNEX A
PLAN OF MERGER
APPENDIX
I
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 | |
ANNEX B
Plan of Merger
PLAN OF MERGER
THIS PLAN OF MERGER is made on [ ]
2015
BETWEEN
| (1) | BTG Hotels Group (CAYMAN) Holding Co., Ltd, an exempted
company with limited liability incorporated under the laws of the Cayman Islands on 18
November 2015, with its registered office situated at Offshore Incorporations (Cayman)
Limited, Floor 4, Willow House, Cricket Square, P O Box 2804, Grand Cayman KY1-1112,
Cayman Islands, Cayman Islands (“Merger Sub”); and |
| (2) | Homeinns Hotel Group, an exempted company with limited
liability incorporated under the laws of the Cayman Islands on 30 May 2006, with its
registered office situated at Maples Corporate Services Limited, P.O Box 309, Ugland
House, Grand Cayman, KY1-1104, Cayman Islands (the “Company” or “Surviving
Company,” and together with Merger Sub, the “Constituent Companies”). |
WHEREAS
| (a) | Merger Sub and the Company have agreed to merge (the “Merger”)
on the terms and conditions contained or referred to in an agreement and plan of merger
(the “Agreement”) dated December 6, 2015 made between Holdco,
Merger Sub, the Company and, solely for the specific purposes stated therein, BTG Hotels
(Group) Co., Ltd., a copy of which is attached as Annex A to this Plan of
Merger and under the provisions of Part XVI of the Companies Law Cap. 22 (Law 3 of 1961,
as consolidated and revised) (the “Companies Law”) , pursuant
to which the Merger Sub will merge with and into the Company and cease to exist and the
Surviving Company will continue as the surviving company in the Merger. |
| (b) | This Plan of Merger is made in accordance with Section 233
of the Companies Law. |
| (c) | Terms used in this Plan of Merger and not otherwise defined
in this Plan of Merger shall have the meanings given to them in the Agreement. |
WITNESSETH
CONSTITUENT COMPANIES
| 1. | The constituent companies (as defined in the Companies Law)
to the Merger are Merger Sub and the Company. |
NAME OF THE SURVIVING COMPANY
| 2. | The surviving company (as defined in the Companies Law) is
the Surviving Company which shall continue to be named Homeinns Hotel Group. |
REGISTERED OFFICE
| 3. | The Surviving Company shall have its registered office at
Maples Corporate Services Limited, P.O Box 309, Ugland House, Grand Cayman, KY1-1104,
Cayman Islands. |
AUTHORISED AND ISSUED SHARE CAPITAL
| 4. | Immediately prior to the Effective Time, the authorized
share capital of Merger Sub was US$50,000 divided into 100,000,000 ordinary shares of
US$0.0005 par value per share of which 65,678,117 shares have been issued and fully paid. |
| 5. | Immediately prior to the Effective Time, the authorized
share capital of the Company was US$1,000,000 divided into 200,000,000 ordinary shares
of US$0.005 par value per share of which [96,421,426] shares have been issued and fully
paid. |
| 6. | At the Effective Time, the authorized share capital
of the Surviving Company shall be US$1,000,000 divided into 200,000,000 ordinary shares
of US$0.005 par value per share. |
| 7. | In accordance with the terms and conditions of the Agreement,
at the Effective Time (as defined below): |
| (a) | each ordinary share of the Company issued and outstanding
immediately prior to the Effective Time, other than any (x) Dissenting Shares (as defined
in the Agreement) and (y) Rollover Shares (as defined in the Agreement) and (z) Excluded
Shares (as defined in the Agreement), shall be cancelled in consideration for the right
to receive the Per Share Merger Consideration (as defined in the Agreement); |
| (b) | each Rollover Share issued and outstanding immediately
prior to the Effective Date shall be converted into and become one validly issued, fully
paid and non-assessable ordinary share, par value $0.005 per share, of the Surviving
Company; |
| (c) | each Excluded Share issued and outstanding immediately
prior to the Effective Date shall be cancelled and shall cease to exist without payment
of any consideration or distribution therefor; |
| (d) | each Dissenting Share issued and outstanding immediately
prior to the Effective Time held by persons who have validly exercised and not withdrawn
or lost their right to dissent from the Merger pursuant to Section 238 of the Companies
Law shall be cancelled in exchange for payment of the fair value in accordance with the
procedure in Section 238 of the Companies Law; and |
| (e) | each ordinary share, par value $0.0005 per share, of
Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted
into and become one validly issued, fully paid and non-assessable ordinary share, par
value $0.005 per share, of the Surviving Company. |
| 8. | At the Effective Time, the ordinary shares of the Surviving
Company shall: |
| (a) | be entitled to one vote per share; |
| (b) | be entitled to such dividends as the board of directors
of the Surviving Company may from time to time declare; |
| (c) | in the event of a winding-up or dissolution of the Surviving
Company, whether voluntary or involuntary or for the purpose of a reorganization or otherwise
or upon any distribution of capital, be entitled to the surplus assets; and |
| (d) | generally be entitled to enjoy all of the rights attaching
to ordinary shares; |
in each case as set out in the Memorandum of Association and
Articles of Association of the Surviving Company.
EFFECTIVE TIME
| 9. | The Merger shall take effect on [ ]
(the “Effective Time”). |
PROPERTY
| 10. | At the Effective Time, the rights, property of every description
including choses in action, and the business, undertaking, goodwill, benefits, immunities
and privileges of each of the Constituent Companies shall immediately vest in the Surviving
Company which shall be liable for and subject, in the same manner as the Constituent
Companies, to all mortgages, charges or security interests, and all contracts, obligations,
claims, debts and liabilities of each of the Constituent Companies. |
MEMORANDUM OF ASSOCIATION AND ARTICLES OF ASSOCIATION OF THE
SURVIVING COMPANY
| 11. | At the Effective Time, the Memorandum of Association and
Articles of Association of the Company shall be amended and restated by their deletion
in their entirety and the substitution in their place of the Amended and Restated Memorandum
of Association and Articles of Association of the Surviving Company in the form attached
as Annex B to this Plan of Merger. |
DIRECTORS BENEFITS
| 12. | There are no amounts or benefits payable to the directors
of the Constituent Companies on the Merger becoming effective. |
DIRECTORS OF THE SURVIVING COMPANY
| 13. | The names and addresses of the directors of the Surviving
Company are as follows: |
SECURED CREDITORS
| (a) | Merger Sub has no secured creditors and has not granted
any other fixed or floating security interests as at the date of this Plan of Merger;
and |
| (b) | The Company has no secured creditors and has not granted
any other fixed or floating security interests as at the date of this Plan of Merger. |
RIGHT OF TERMINATION
| 15. | This Plan of Merger may be terminated or amended pursuant
to the terms and conditions of the Agreement at any time prior to the Effective Time. |
APPROVAL AND AUTHORIZATION
| 16. | This Plan of Merger has been approved by the sole director
of Merger Sub and the board of directors of the Company pursuant to Section 233(3) of
the Companies Law. |
| 17. | This Plan of Merger has been authorized by the shareholders
of each of Merger Sub and the Company pursuant to Section 233(6) of the Companies Law. |
COUNTERPARTS
| 18. | This Plan of Merger may be executed by facsimile and in
one or more counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument. |
GOVERNING LAW
| 19. | This Plan of Merger shall be governed by and construed in
accordance with the laws of the Cayman Islands. |
For and on behalf of BTG
Hotels Group (Cayman) Holding Co., Ltd:
|
Rungang ZHANG |
Date: |
|
Director |
|
For and on behalf of HOMEINNS HOTEL GROUP:
ANNEX A
(Agreement and Plan of Merger)
ANNEX B
(Amended and Restated Memorandum of
Association and Articles of Association of the Surviving Company)
ANNEX C
Opinion of Credit Suisse Securities
(USA) LLC, Financial Advisor to the Special Committee
ANNEX D
Cayman Islands Companies Law (2013 Revision)—Section
238
Companies Law (2013 Revision)
Rights of dissenters |
238. (1) A member of a constituent
company incorporated under this Law shall be entitled to payment of the fair value of his shares upon dissenting from a merger
or consolidation. |
(2) A member who desires to exercise
his entitlement under subsection (1) shall give to the constituent company, before the vote on the merger or consolidation, written
objection to the action.
(3) An objection under subsection
(2) shall include a statement that the member proposes to demand payment for his shares if the merger or consolidation is authorized
by the vote.
(4) Within twenty days immediately
following the date on which the vote of members giving authorization for the merger or consolidation is made, the constituent
company shall give written notice of the authorization to each member who made a written objection.
(5) A member who elects to dissent
shall, within twenty days immediately following the date on which the notice referred to in subsection (4) is given, give to the
constituent company a written notice of his decision to dissent, stating-
| (b) | the number and classes of shares in respect of which
he dissents; |
and
| (c) | a demand for payment of the fair value of his shares. |
(6) A member who dissents shall
do so in respect of all shares that he holds in the constituent company.
(7) Upon the giving of a notice
of dissent under subsection (5), the member to whom the notice relates shall cease to have any of the rights of a member except
the right to be paid the fair value of his shares and the rights referred to in subsections (12) and (16).
(8) Within seven days immediately
following the date of the expiration of the period specified in subsection (5), or within seven days immediately following the
date on which the Plan of Merger or consolidation is filed, whichever is later, the constituent company, the surviving company
or the consolidated company shall make a written offer to each dissenting member to purchase his shares at a specified price that
the company determines to be their fair value; and if, within thirty days immediately following the date on which the offer is
made, the company making the offer and the dissenting member agree upon the price to be paid for his shares, the company shall
pay to the member the amount in money forthwith.
(9) If the company and a dissenting
member fail, within the period specified in subsection (8), to agree on the price to be paid for the shares owned by the member,
within twenty days immediately following the date on which the period expires-
| (a) | the company shall (and any dissenting member may) file
a petition with the Court for a determination of the fair value of the shares of all
dissenting members; and |
| (b) | the petition by the company shall be accompanied by
a verified list containing the names and addresses of all members who have filed a notice
under subsection (5) and with whom agreements as to the fair value of their shares
have not been reached by the company. |
(10) A copy of any petition filed
under subsection (9)(a) shall be served on the other party; and where a dissenting member has so filed , the company shall
within ten days after such service file the verified list referred to in subsection (9)(b).
(11) At the hearing of a petition,
the Court shall determine the fair value of the shares of such dissenting members as it finds are involved, together with a fair
rate of interest, if any, to be paid by the company upon the amount determined to be the fair value.
(12) Any member whose name appears
on the list filed by the company under subsection (9)(b) or (10) and who the Court finds are involved may participate
fully in all proceedings until the determination of fair value is reached.
(13) The order of the Court resulting
from proceeding on the petition shall be enforceable in such manner as other orders of the Court are enforced , whether the company
is incorporated under the laws of the Islands or not.
(14) The costs of the proceeding may be
determined by the Court and taxed upon the parties as the Court deems equitable in the circumstances; and upon application of
a member, the Court may order all or a portion of the expenses incurred by any member in connection with the proceeding, including
reasonable attorney’s fees and the fees and expenses of experts, to be charged pro rata against the value of all the shares
which are the subject of the proceeding.
(15) Shares acquired by the company pursuant
to this section shall be cancelled and, if they are shares of a surviving company, they shall be available for re-issue.
(16) The enforcement by a member of his
entitlement under this section shall exclude the enforcement by the member of any right to which he might otherwise be entitled
by virtue of his holding shares, except that this section shall not exclude the right of the member to institute proceedings to
obtain relief on the ground that the merger or consolidation is void or unlawful.
ANNEX E
Support Agreement
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 | |
ANNEX
F: Directors and Executive Officers of Each Filing Person
| 1. | Directors
and Executive Officers of the Company |
The
Company is a company organized under the laws of the Cayman Islands with its principal business address at No. 124 Caobao Road,
Xuhui District, Shanghai 200235, People’s Republic of China. The telephone number of the Company’s principal executive
office is +86 21 3337-3333.
During
the last five years, none of the Company, or any of our directors and executive officers has been (i) convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or (ii) a party to any judicial or administrative proceeding
(except for matters that were dismissed without sanction or settlement) that resulted in a judgment or decree or final order enjoining
the person from future violations of, or prohibiting activities subject to, federal or state securities laws, or a finding of
any violation of federal or state securities laws.
The
name, business address, present principal employment and citizenship of each director and executive officer of the Company are
set forth below. Unless otherwise indicated, the business address of each director and executive officer is c/o No. 124 Caobao
Road, Xuhui District, Shanghai 200235, People’s Republic of China.
Name | |
Business
Address | |
Present Principal
Employment | |
Citizenship |
Yi Liu | |
c/o Beijing Tourism Group No. 10 Yabao Road, Chaoyang
District, Beijing 100020, People's Republic of China | |
Vice Chairman of Board of Directors and General Manager
of BTG; Co-Chairman of Board of Directors and Independent Director of the Company | |
People’s Republic of China |
| |
| |
| |
|
Neil Nanpeng Shen | |
c/o Suit 3613, 36/F, 2 Pacific Place, 88 Queensway, Hong
Kong | |
Co-Founder, Co-Chairman of the Board of Directors and
Independent Director of the Company; Independent Director of Ctrip | |
People’s Republic of China (Hong Kong SAR) |
| |
| |
| |
|
David Jian Sun | |
c/o No. 124 Caobao Road, Xuhui District, Shanghai 200235,
People’s Republic of China | |
Chief Executive Officer, Director | |
People’s Republic of China |
| |
| |
| |
|
May Wu | |
c/o No. 124 Caobao Road, Xuhui District, Shanghai 200235,
People’s Republic of China | |
Chief Strategy Officer | |
United States |
| |
| |
| |
|
Cathy Xiangrong Li | |
c/o No. 124 Caobao Road, Xuhui District, Shanghai 200235,
People’s Republic of China | |
Chief Financial Officer | |
People’s Republic of China |
| |
| |
| |
|
Jason Xiangxin Zong | |
c/o No. 124 Caobao Road, Xuhui District, Shanghai 200235,
People’s Republic of China | |
Chief Operating Officer | |
People’s Republic of China |
| |
| |
| |
|
Min Bao | |
c/o Beijing Tourism Group No. 10 Yabao Road, Chaoyang
District, Beijing 100020, People's Republic of China | |
Deputy General Manager of BTG ; Independent Director
of the Company | |
People’s Republic of China |
| |
| |
| |
|
James Jianzhang Liang | |
968 Jin Zhong Road, Shanghai 200335, People’s Republic
of China
| |
Chairman of Board of Directors and Chief Executive Officer
of Ctrip; Independent Director of the Company | |
Saint Kitts and Nevis |
| |
| |
| |
|
Kenneth Gaw | |
22nd Floor, Lyndhurst Tower, No.1 Lyndhurst, Terrace
Central, Hong Kong | |
Independent Director | |
People’s Republic of China (Hong Kong SAR) |
| |
| |
| |
|
Terry Yongmin Hu | |
c/o No. 124 Caobao Road, Xuhui District, Shanghai 200235,
People’s Republic of China | |
Independent Director | |
People’s Republic of China (Hong Kong SAR) |
| |
| |
| |
|
Arthur M. Wang | |
c/o No. 124 Caobao Road, Xuhui District, Shanghai 200235,
People’s Republic of China | |
Independent Director | |
People’s Republic of China (Hong Kong SAR) |
Yi
Liu has served as the Company’s independent director since 2013. Mr. Liu has been the General Manager of Beijing Tourism
Group since June 2008 and the vice chairman of Beijing Tourism Group since April 2010. Beijing Tourism Group is a state-owned
enterprise established in the PRC, which offers dining, lodging, transportation, travel, shopping, and entertainment services,
with its business address at 10 Yabao Road, Chaoyang District, Beijing, PRC, 100020.
Neil
Nanpeng Shen is one of the co-founders of the Company and has been the Company’s director since the inception of the Company
and the Company’s independent director since 2007. He is the founding managing partner of Sequoia Capital Advisors (Hong
Kong) Limited (or “Sequoia”) and has been serving Sequoia since 2005. Sequoia offers advisory, financial planning,
and portfolio management services, with its business address at Suit 3613, 36/F, 2 Pacific Place, 88 Queensway, Hong Kong.
David
Jian Sun has served as the Company’s director and chief executive officer since 2004.
May
Wu has served as the Company’s chief strategy officer since 2010. She also served as the chief executive officer of the
Company’s Yitel brand from 2010 to 2012, and was the Company’s chief financial officer from 2006 to 2010 and the Company’s
acting chief financial officer effective from May to August 2014.
Cathy
Xiangrong Li has served as the Company’s chief financial officer since August 2014. Ms. Li has been the chief financial
officer of Hengdeli Holdings Limited since 2010, which is a famous fine watch retailer and wholesaler in Greater China, with its
business address at Room 301, 3/F Lippo Sun Plaza 28, Canton Road, Tsim Sha Tsui, Kowloon, Hong Kong.
Jason
Xiangxin Zong has served as the Company’s chief operating officer since 2008 and as the Company’s president–chief
operating officer since January 2014
Min
Bao has served as the Company’s director since 2006. Mr. Bao is the general manager of BTG Hotel & Resorts Co., Ltd.,
where he has worked since February 2006. BTG Hotel & Resorts Co., Ltd. is a company mainly providing travel and accommodation-related
services in China, with its business address at A302 Jinsong Third Area, 24th Floor, Huateng Building, Chaoyang District, Beijing,
the PRC.
James
Jianzhang Liang is one of the co-founders of the Company. He has served as the Company’s director since its inception. Mr.
Liang is also one of the co-founders of Ctrip.com International Ltd., and has been the chairman of the board of Ctrip.com International
Ltd. since 2003. Ctrip.com International Ltd. is a leading company providing online travel agency services in China, which includes
offering mobile applications, hotel reservations, flight ticketing, package tours, corporate travel management and train ticketing
services, etc. Its business address is 99 Fu Quan Road, Shanghai, the PRC.
Kenneth
Gaw has served as the Company’s independent director since 2006. Since 1999, Mr. Gaw has been a managing director of Pioneer
Global Group Limited, a company listed on the Hong Kong Stock Exchange that primarily focuses on real estate and hotel investments
in Hong Kong, Macau, China and South East Asia. Pioneer Global Group Limited has its business address at 20th Floor, Lyndhurst
Tower, No. 1 Lyndhurst, Terrace Central, Hong Kong. Mr. Gaw also founded Gaw Capital Partners and has served as its president
and managing principal since 2005. Gaw Capital Partners is a real estate private equity firm that invests in all sectors
of real estate industries globally. Gaw Capital Partners has its business address at 22nd Floor, Lyndhurst Tower, No. 1 Lyndhurst,
Terrace Central, Hong Kong.
Terry
Yongmin Hu has served as the Company’s independent director since 2006. Mr. Hui is a founding partner and managing director
at FountainVest Partners and founded it in 2007. FountainVest Partners is a private equity firm specializing in growth capital
and buyouts, with its business address at Floor 22, Tower 2 Jing An Kerry Centre, 1539 Nanjing West Road, Shanghai, PRC, 20040.
Arthur
M. Wang has served as the Company’s independent director and member of the audit committee of the board of directors since
2009. Mr. Wang is the founder and managing partner of 698 Capital Limited, an Asian investment firm with its business address
at 16th Floor, Wheelock House, Central, Hong Kong. From 2003 to 2011, Mr. Wang was the chief executive officer and a director
of Gigamedia Limited, a Nasdaq-listed online entertainment and game firm. GigaMedia Limited is a major provider of online entertainment
software and services, with its business address at 8th Floor, No. 22, Lane 407, Section 2, Tiding Boulevard, Neihu District,
Taipei 114, Taiwan. Mr. Wang also served as the managing director of several investment firms and board member of several
public and private companies in Asia.
| 2. | Directors
and Executive Officers of Merger Sub |
BTG
Hotels Group (CAYMAN) Holding Co., Ltd, or Merger Sub, is an exempted company with limited liability incorporated under the laws
of the Cayman Islands. Merger Sub’s business address is c/o BTG Hotels (Group) Co., Ltd., 51 Fuxingmen Avenue, Xicheng District,
Beijing 100031, People’s Republic of China, and its telephone number is (+86-10) 6601-4466.
The
name, business address, present principal employment and citizenship of the director of Merger Sub are set forth below. Merger
Sub does not have any executive officers.
Name | |
Business
Address | |
Present Principal
Employment | |
Citizenship |
Rungang Zhang | |
c/o BTG Hotels (Group) Co., Ltd., 51 Fuxingmen Avenue, Xicheng District,
Beijing 100031, People’s Republic of China | |
Chairman of the Board of Directors and General Manager of BTG Hotels; Director
of BTG | |
People’s Republic of China |
Mr.
Rungang Zhang has served as the Chairman of Board of Directors and General Manager of BTG Hotels and Chairman of the Board of
Directors of Jian Guo Inns Beijing Ltd. since March 2014. From September 2004 to February 2014, Mr. Zhang served as Vice General
Manager of Jian Guo Inns Beijing Ltd. Jian Guo Inns Beijing Ltd. is a hotel management company wholly owned by BTG Hotels, and
its business address is 24/F, Huateng Building, 302A Jinsong 3rd District, Chaoyang District, Beijing, People’s Republic
of China.
During
the last five years, none of Merger Sub or any of its directors has been (a) convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or (b) a party to any judicial or administrative proceeding (except for matters that were
dismissed without sanction or settlement) that resulted in a judgment or decree or final order enjoining the person from future
violations of, or prohibiting activities subject to, federal or state securities laws, or a finding of any violation of federal
or state securities laws.
Merger
Sub is a wholly owned subsidiary of, and controlled by, Holdco. A description of Holdco is provided below and incorporated herein
by reference.
| 3. | Directors
and Executive Officers of Holdco |
BTG
Hotels Group (HONGKONG) Holdings Co., Limited, or Holdco, is a company incorporated under the laws of the Hong Kong Special Administrative
Region. Holdco’s business address is c/o BTG Hotels (Group) Co., Ltd., 51 Fuxingmen Avenue, Xicheng District, Beijing 100031,
People’s Republic of China, and its telephone number is (+86-10) 6601-4466.
The
name, business address, present principal employment and citizenship of the director of Holdco are set forth below. Holdco does
not have any executive officers.
Name | |
Business Address | |
Present Principal Employment | |
Citizenship |
Rungang Zhang | |
c/o BTG Hotels (Group) Co., Ltd., 51 Fuxingmen Avenue, Xicheng District,
Beijing 100031, People’s Republic of China | |
Chairman of the Board of Directors and General Manager of BTG Hotels; Director
of BTG | |
People’s Republic of China |
During the last five years, none of Holdco
or any of its directors has been (a) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors)
or (b) a party to any judicial or administrative proceeding (except for matters that were dismissed without sanction or settlement)
that resulted in a judgment or decree or final order enjoining the person from future violations of, or prohibiting activities
subject to, federal or state securities laws, or a finding of any violation of federal or state securities laws.
Holdco
is a wholly owned subsidiary of, and controlled by, BTG Hotels. A description of BTG Hotels is provided below and incorporated
herein by reference.
| 4. | Directors
and Executive Officers of BTG Hotels |
BTG
Hotels (Group) Co., Ltd., or BTG Hotels, is a joint stock company incorporated under the laws of the People’s Republic of
China. BTG Hotels’ business address is 51 Fuxingmen Avenue, Xicheng District, Beijing 100031, People’s Republic of
China, and its telephone number is (+86-10) 6601-4466.
The
name, business address, present principal employment and citizenship of each director and executive officer of BTG Hotels are
set forth below.
Name | |
Business
Address | |
Present
Principal Employment | |
Citizenship |
Rungang Zhang | |
c/o BTG Hotels (Group) Co., Ltd., 51 Fuxingmen Avenue, Xicheng District,
Beijing 100031, People’s Republic of China | |
Chairman of the Board of Directors and General Manager of BTG Hotels; Director
of BTG | |
People’s Republic of China |
| |
| |
| |
|
Zhongpeng Duan | |
c/o BTG Hotels (Group) Co., Ltd., 51 Fuxingmen Avenue, Xicheng District,
Beijing 100031, People’s Republic of China | |
Director of BTG Hotels; Chairman of the Board of Directors of Beijing Jinglun
Hotel Co., Ltd. | |
People’s Republic of China |
Peizhi Hu | |
c/o BTG Hotels (Group) Co., Ltd., 51 Fuxingmen Avenue, Xicheng
District, Beijing 100031, People’s Republic of China
| |
Director of BTG Hotels | |
People’s Republic of China |
| |
| |
| |
|
Weidong Meng | |
c/o BTG Hotels (Group) Co., Ltd., 51 Fuxingmen Avenue, Xicheng District,
Beijing 100031, People’s Republic of China
| |
Director of BTG Hotels | |
People’s Republic of China |
| |
| |
| |
|
Hong Chen | |
c/o BTG Hotels (Group) Co., Ltd., 51 Fuxingmen Avenue, Xicheng District,
Beijing 100031, People’s Republic of China
| |
Director of BTG Hotels | |
People’s Republic of China |
| |
| |
| |
|
Yuanguang Li | |
c/o BTG Hotels (Group) Co., Ltd., 51 Fuxingmen Avenue, Xicheng District,
Beijing 100031, People’s Republic of China
| |
Director of BTG Hotels | |
People’s Republic of China |
| |
| |
| |
|
Qing Han | |
c/o BTG Hotels (Group) Co., Ltd., 51 Fuxingmen Avenue, Xicheng District,
Beijing 100031, People’s Republic of China
| |
Director of BTG Hotels | |
People’s Republic of China |
| |
| |
| |
|
Baojun Zhang | |
c/o BTG Hotels (Group) Co., Ltd., 51 Fuxingmen Avenue, Xicheng District,
Beijing 100031, People’s Republic of China
| |
Director of BTG Hotels | |
People’s Republic of China |
| |
| |
| |
|
Weidong Bao | |
c/o BTG Hotels (Group) Co., Ltd., 51 Fuxingmen Avenue, Xicheng District,
Beijing 100031, People’s Republic of China
| |
Director of BTG Hotels | |
People’s Republic of China |
| |
| |
| |
|
Tianzhu Fu | |
c/o BTG Hotels (Group) Co., Ltd., 51 Fuxingmen Avenue, Xicheng District,
Beijing 100031, People’s Republic of China
| |
Executive Deputy General Manager of BTG Hotels | |
People’s Republic of China |
| |
| |
| |
|
Jun Yang | |
c/o BTG Hotels (Group) Co., Ltd., 51 Fuxingmen Avenue, Xicheng District,
Beijing 100031, People’s Republic of China
| |
Chief Financial Officer of BTG Hotels | |
People’s Republic of China |
| |
| |
| |
|
Kai Dong | |
c/o BTG Hotels (Group) Co., Ltd., 51 Fuxingmen Avenue, Xicheng District,
Beijing 100031, People’s Republic of China | |
Chief Operating Officer of BTG Hotels | |
People’s Republic of China |
Mr.
Zhongpeng Duan has served as the assistant to general manager and secretary of the board of directors of BTG Hotels since December
2009 and a director of BTG Hotels since January 2015.
Mr.
Peizhi Hu has been a director of BTG Hotels since January 2015. Mr. Hu has served as the Secretary of the Party Committee of BTG
Hotels since July 2010.
Mr.
Weidong Meng has been a director of BTG Hotels since April 2015. Mr. Meng has served as the Vice Secretary of the Party Committee,
director and executive deputy general manager of BTG Property & Investment Co., Ltd. Mr. Meng served as the general manager
of the department of BTG Property & Investment Co., Ltd. from April 2012 to June 2014 and its Chief Accounting Officer from
December 2004 to April 2012. BTG Property & Investment Co., Ltd. is a wholly owned subsidiary of BTG engaged in the development
and management of tourist destinations and commercial properties, and its business address is 3 Jinyu Hutong, Wangfujing Street,
Dongcheng District, Beijing, People’s Republic of China.
Ms.
Hong Chen has been a director of BTG Hotels since July 2014. Ms. Chen has served as the secretary to the board of directors, assistant
to general manager and chief of the general manager of office of Beijing Urban-Rural Trade Centre Co., Ltd. since February 2009.
Beijing Urban-Rural Trade Centre Co., Ltd. is a PRC company listed on the Shanghai Stock Exchange, and its business address is
23A Fuxing Road, Haidian District, Beijing, People’s Republic of China.
Mr.
Yuanguang Li has been a director of BTG Hotels since February 2015. Mr. Li has served as the general manager of the equity management
department of BTG since July 2014. Mr. Li served as a director and general manager of Beijing Yangguang Weihua Investment Management
Company from March 2012 to July 2014 and vice general manager of department of investment and development of BTG from July 2009
to March 2012.
Mr.
Qing Han has been a director of BTG Hotels since August 2015. Mr. Han has served as the vice general manager of China International
Taxation Consultation Co. since October 2013. Mr. Han served as a post-doctoral research of applied economics of Peking University
School of Economics from October 2011 to September 2013 and the financial director and vice general manager of China International
Taxation Consultation Co. since December 2007 to October 2011.
Mr.
Baojun Zhang has been a director of BTG Hotels since May 2012. Mr. Zhang has served as a partner of Beijing Kangda Law Firm since
October 2006.
Mr.
Weidong Bao has been a director of BTG Hotels since May 2012. Mr. Bao has served as vice general manager of Beijing Changping
District Ming Tombs Tourism Development Co., Ltd. since October 2011. Mr. Bao served as a member of the Party Committee of State-owned
Assets Supervision and Administration Commission of Beijing Changping District from December 2005 to September 2011.
Mr.
Tianzhu Fu has been executive deputy general manager of BTG Hotels since April 2012. Mr. Fu served as the director and chief executive
officer of Jian Guo Inns Beijing Co., Ltd. from August 2007 to August 2015 and its chairman of board of directors since August
2015.
Ms.
Jun Yang has been chief financial officer of BTG Hotels since September 2014. Ms. Yang has served as the Chief Accountant of BTG
Hotels since February 2006.
Mr.
Kai Dong has been chief operating officer of BTG Hotels since September 2014. Mr. Dong served as the director of the department
of operation management of BTG Hotels from December 2012 to September 2014, vice general manager of Kempinski Hotel Shenzhen from
February to December 2012, and manager of department of marketing of Beijing Zhaolong Hotel from August 2010 to February 2012.
During
the last five years, none of BTG Hotels or any of its directors or executive officers has been (a) convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or (b) a party to any judicial or administrative proceeding
(except for matters that were dismissed without sanction or settlement) that resulted in a judgment or decree or final order enjoining
the person from future violations of, or prohibiting activities subject to, federal or state securities laws, or a finding of
any violation of federal or state securities laws.
| 5. | Directors
and Executive Officers of Poly Victory |
Poly
Victory Investments Limited, or Poly Victory, is a company incorporated under the laws of the British Virgin Islands. Poly Victory’s
business address is c/o Beijing Tourism Group No. 10 Yabao Road, Chaoyang District, Beijing 100020, People's Republic of China,
and its telephone number is (+86-10) 8562-9988.
The
name, business address, present principal employment and citizenship of each director of Poly Victory are set forth below. Poly
Victory does not have any executive officers.
Name | |
Business
Address | |
Present Principal
Employment | |
Citizenship |
Min Bao | |
c/o Beijing Tourism Group No. 10 Yabao Road, Chaoyang District, Beijing
100020, People's Republic of China
| |
Deputy General Manager of BTG ; Independent Director of the Company | |
People’s Republic of China |
| |
| |
| |
|
Yi Liu | |
c/o Beijing Tourism Group No. 10 Yabao Road, Chaoyang District, Beijing
100020, People's Republic of China | |
Vice Chairman of Board of Directors and General Manager of BTG; Co-Chairman
of Board of Directors and Independent Director of the Company | |
People’s Republic of China |
During
the last five years, none of Poly Victory or any of its directors has been (a) convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or (b) a party to any judicial or administrative proceeding (except for matters that were
dismissed without sanction or settlement) that resulted in a judgment or decree or final order enjoining the person from future
violations of, or prohibiting activities subject to, federal or state securities laws, or a finding of any violation of federal
or state securities laws.
Poly
Victory is a wholly owned subsidiary of, and controlled by, Beijing Tourism Group Co. Ltd., or BTG. A description of BTG
is provided below and incorporated herein by reference.
| 6. | Directors
and Executive Officers of BTG |
BTG is a company incorporated under the
laws of the People’s Republic of China. BTG’s business address is 10 Yabao Road, Chaoyang District, Beijing 100020,
People’s Republic of China, and its telephone number is (+86-10) 8562-9988.
The
name, business address, present principal employment and citizenship of each director and executive officer of BTG are set forth
below.
Name | |
Business
Address | |
Present Principal
Employment | |
Citizenship |
Qiang Duan | |
c/o Beijing Tourism Group No. 10 Yabao Road, Chaoyang District, Beijing
100020, People's Republic of China
| |
Chairman of Board of Directors of BTG | |
People’s Republic of China |
| |
| |
| |
|
Yi Liu | |
c/o Beijing Tourism Group No. 10 Yabao Road, Chaoyang District, Beijing
100020, People's Republic of China
| |
Vice Chairman of Board of Directors and General Manager of BTG; Co-Chairman
of Board of Directors and Independent Director of the Company | |
People’s Republic of China |
| |
| |
| |
|
Hongtao Wei | |
c/o Beijing Tourism Group No. 10 Yabao Road, Chaoyang District, Beijing
100020, People's Republic of China
| |
Director and Executive Deputy General Manager of BTG | |
People’s Republic of China |
| |
| |
| |
|
Tongxin Ding | |
c/o Beijing Tourism Group No. 10 Yabao Road, Chaoyang District, Beijing
100020, People's Republic of China
| |
Vice Chairman of Board of Directors of BTG | |
People’s Republic of China |
| |
| |
| |
|
Rungang Zhang | |
c/o Beijing Tourism Group No. 10 Yabao Road, Chaoyang District, Beijing
100020, People's Republic of China
| |
Chairman of the Board of Directors and General Manager of BTG Hotels; Director
of BTG | |
People’s Republic of China |
| |
| |
| |
|
Xiao Chen | |
c/o Beijing Tourism Group No. 10 Yabao Road, Chaoyang District, Beijing
100020, People's Republic of China
| |
Director of BTG | |
People’s Republic of China |
| |
| |
| |
|
Xiaoan Wei | |
c/o Beijing Tourism Group No. 10 Yabao Road, Chaoyang District, Beijing
100020, People's Republic of China
| |
Director of BTG | |
People’s Republic of China |
| |
| |
| |
|
Maoyuan Zhu | |
c/o Beijing Tourism Group No. 10 Yabao Road, Chaoyang District, Beijing
100020, People's Republic of China
| |
Director of BTG | |
People’s Republic of China |
| |
| |
| |
|
Yuecan Yao | |
c/o Beijing Tourism Group No. 10 Yabao Road, Chaoyang District, Beijing
100020, People's Republic of China
| |
Director of BTG | |
People’s Republic of China |
| |
| |
| |
|
Bin Xu | |
c/o Beijing Tourism Group No. 10 Yabao Road, Chaoyang District, Beijing
100020, People's Republic of China
| |
Director of BTG | |
People’s Republic of China |
| |
| |
| |
|
Tao Yang | |
c/o Beijing Tourism Group No. 10 Yabao Road, Chaoyang District, Beijing
100020, People's Republic of China
| |
Director of BTG | |
People’s Republic of China |
| |
| |
| |
|
Fan Bai | |
c/o Beijing Tourism Group No. 10 Yabao Road, Chaoyang District, Beijing
100020, People's Republic of China
| |
Deputy General Manager of BTG | |
People’s Republic of China |
Min
Bao | |
c/o Beijing Tourism Group No. 10 Yabao Road, Chaoyang District,
Beijing 100020, People's Republic of China
| |
Deputy General Manager of BTG ; Independent Director of the
Company | |
People’s Republic of China |
Fei Gao | |
c/o Beijing Tourism Group No. 10 Yabao Road, Chaoyang District, Beijing
100020, People's Republic of China
| |
Deputy General Manager of BTG | |
People’s Republic of China |
Xuezhong Yu | |
c/o Beijing Tourism Group No. 10 Yabao Road, Chaoyang District, Beijing
100020, People's Republic of China
| |
Deputy General Manager of BTG | |
People’s Republic of China |
Yonghao Guo | |
c/o Beijing Tourism Group No. 10 Yabao Road, Chaoyang District, Beijing
100020, People's Republic of China | |
Financial Director and Deputy General Manager of BTG | |
People’s Republic of China |
Mr.
Qiang Duan has been the Chairman of Board of Directors of BTG since February 1998.
Ms.
Hongtao Wei has been the Director and Executive Deputy General Manager of BTG since April 2010.
Mr.
Tongxin Ding has been the Vice Chairman of Board of Directors of BTG since April 2010.
Mr.
Xiao Chen has been a director of BTG since November 2008. Since March 2007, Mr. Chen has served as a lecturer, professor and dean
of the Accounting Department of the School of Economics and Management of Tsinghua University, whose business address is School
of Economics and Management, Tsinghua University, Beijing 100084, People’s Republic of China.
Mr.
Xiaoan Wei has been a director of BTG since August 2011. Mr. Wei has served as Chairman of the Academic Committee of China Tourism
Academy and Doctoral Supervisor of Minzu University of China since 2008. China Tourism Academy is a specialized academic institute
established by the China National Tourism Administration, and its business address is Building 2, 10-11, 9A Jianguomennei Avenue,
Beijing 100005, People’s Republic of China. The business address of Minzu University of China is 27 Zhongguancun South Avenue,
Haidian District, Beijing 100081, People’s Republic of China.
Mr.
Maoyuan Zhu has been a director of BTG since November 2013. Mr. Zhu has served as a partner of Beijing Zhong Lun Law Firm for
the past five years. Zhong Lun Law Firm is a large, full-service law firm in China, and its business address is 36-37/F, SK Tower,
6A Jianguomenwai Avenue, Chaoyang District, Beijing 100022, People’s Republic of China.
Mr.
Yuncan Yao has been a director of BTG since February 2015. Prior to his retirement in March 2012, Mr. Yao served as Director and
Deputy General Manager of CITS Group Corporation, a PRC state-owned enterprise engaged in travel service, sales of duty-free products,
development and management of real estates in tourism resorts, communications and transport, electronic commerce and other general
services. The business address of CITS Group Corporation is CITS Building, 1 Dongdan Beidajie, Dongcheng District, Beijing, People’s
Republic of China.
Mr.
Bin Xu has been a director of BTG since February 2015. For the past five years, Mr. Xu has served as the dean of the School of
Labor Economics of Capital University of Economics of Business, whose business address is 121 Zhangjialukou, Huaxiang Fengtai
District, Beijing 100070, People’s Republic of China.
Mr.
Tao Yang has been a director of BTG since February 2015. Since 2009, Mr. Yang has served as a senior partner of China Audit Asia
Pacific Certified Public Accountants LLP, whose business address is 22-23/F, Tianxingjian Business Building, 47 Fuxing Road, Haidian
District, Beijing 100036, People’s Republic of China.
Mr.
Fan Bai has been Deputy General Manager of BTG since March 2013. Mr. Bai served as the Financial Director of BTG from June 2010
to February 2013.
Mr.
Min Bao has served as Deputy General Manager of BTG since July 2008.
Mr.
Fei Gao has served as Deputy General Manager of BTG since January 2009.
Mr.
Xuezhong Yu has served as Deputy General Manager of BTG since October 2010.
Mr.
Yonghao Guo has served as Deputy General Manager and Financial Director of BTG since March 2013, prior to which Mr. Guo served
as the Manager of the Planning and Financial Department of CNOOC Infrastructure Management Co., Ltd., whose business address is
25 Chaoyangmenbei Dajie, Dongcheng District, Beijing 100010, People’s Republic of China.
During
the last five years, none of BTG or any of its directors or executive officers has been (a) convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or (b) a party to any judicial or administrative proceeding (except for
matters that were dismissed without sanction or settlement) that resulted in a judgment or decree or final order enjoining the
person from future violations of, or prohibiting activities subject to, federal or state securities laws, or a finding of any
violation of federal or state securities laws.
| 7. | Directors
and Executive Officers of Ctrip Shanghai |
Ctrip
Travel Information Technology (Shanghai) Co., Ltd., or Ctrip Shanghai, is a company with limited liability incorporated under
the laws of the People’s Republic of China. Ctrip Shanghai’s business address is c/o Ctrip.com International, Ltd.,
968 Jin Zhong Road, Shanghai 200335, People’s Republic of China, and its telephone number is (+86-21) 3406-4880. Ctrip Shanghai
does not have any directors or executive officers.
During
the last five years, none of Ctrip Shanghai or any of its directors or officers has been (a) convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or (b) a party to any judicial or administrative proceeding (except for
matters that were dismissed without sanction or settlement) that resulted in a judgment or decree or final order enjoining the
person from future violations of, or prohibiting activities subject to, federal or state securities laws, or a finding of any
violation of federal or state securities laws.
Ctrip
Shanghai is a wholly owned subsidiary of Ctrip.com (Hong Kong) Limited, or Ctrip (HK). Ctrip (HK)’s business address is
c/o Ctrip.com International, Ltd., 968 Jin Zhong Road, Shanghai 200335, People’s Republic of China, and its telephone number
is (+86-21) 3406-4880. The name, business address, present principal employment and citizenship of each director of Ctrip (HK)
are set forth below. Ctrip (HK) does not have any executive officers.
Name | |
Business
Address | |
Present
Principal Employment | |
Citizenship |
James Jianzhang Liang | |
968 Jin Zhong Road, Shanghai 200335, People’s Republic of China | |
Chairman of Board of Directors and Chief Executive Officer of Ctrip; Independent
Director of the Company
| |
Saint Kitts and Nevis |
| |
| |
| |
|
Min Fan | |
968 Jin Zhong Road, Shanghai 200335, People’s Republic of China | |
Director, Vice Chairman of Board of Directors and President of Ctrip
| |
People’s Republic of China |
| |
| |
| |
|
Jane Jie Sun | |
c/o 968 Jin Zhong Road, Shanghai 200335, People’s Republic of China | |
Co-President and Chief Operational Officer of Ctrip
| |
Singapore |
| |
| |
| |
|
Cindy Xiaofan Wang | |
c/o 968 Jin Zhong Road, Shanghai 200335, People’s Republic of China
| |
Chief Financial Officer of Ctrip | |
People’s Republic of China |
| |
| |
| |
|
Neil Nanpeng Shen | |
c/o Suit 3613, 36/F, 2 Pacific Place, 88 Queensway, Hong Kong | |
Co-Founder, Co-Chairman of the Board of Directors and Independent Director
of the Company; Independent Director of Ctrip | |
People’s Republic of China (Hong Kong SAR) |
Mr.
Min Fan has been a director of Ctrip.com International, Ltd., or Ctrip, since October 2006, Vice Chairman of the Board of Directors
of Ctrip since March 2013 and President of Ctrip since February 2009. Mr. Fan also served as the Chief Executive Officer of Ctrip
from January 2006 to February 2013. Ctrip’s business address is 968 Jin Zhong Road, Shanghai 200335, People’s Republic
of China, and its telephone number is (+86-21) 3406-4880.
Ms.
Jane Jie Sun has been the Chief Operating Officer of Ctrip since May 2012 and Co-President since March 2015. Ms. Sun served as
the Chief Financial Officer of Ctrip from 2005 to 2012.
Ms.
Cindy Xiaofan Wang has been the Chief Financial Officer of Ctrip since November 2013, prior to which Ms. Wang served as Vice President
of Ctrip since January 2008.
During
the last five years, none of Ctrip (HK) or any of its directors has been (a) convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors) or (b) a party to any judicial or administrative proceeding (except for matters that
were dismissed without sanction or settlement) that resulted in a judgment or decree or final order enjoining the person from
future violations of, or prohibiting activities subject to, federal or state securities laws, or a finding of any violation of
federal or state securities laws.
Ctrip
(HK) is a wholly owned subsidiary of, and controlled by, Ctrip.com International, Ltd., or Ctrip. Ctrip is an exempted company
with limited liability incorporated and existing under the laws of the Cayman Islands. Ctrip’s business address is 968 Jin
Zhong Road, Shanghai 200335, People’s Republic of China, and its telephone number is (+86-21) 3406-4880. The name, business
address, present principal employment and citizenship of each director and executive officer of Ctrip are set forth below.
The
name, business address, present principal employment and citizenship of each director and executive officer of Ctrip are set forth
below.
Name | |
Business
Address | |
Present
Principal Employment | |
Citizenship |
James Jianzhang Liang | |
c/o 968 Jin Zhong Road, Shanghai 200335, People’s Republic of China | |
Chairman of Board of Directors and Chief Executive Officer of Ctrip; Independent
Director of the Company
| |
Saint Kitts and Nevis |
| |
| |
| |
|
Min Fan | |
c/o 968 Jin Zhong Road, Shanghai 200335, People’s Republic of China | |
Director, Vice Chairman of Board of Directors and President of Ctrip
| |
People’s Republic of China |
| |
| |
| |
|
Neil Nanpeng Shen | |
c/o Suit 3613, 36/F, 2 Pacific Place, 88 Queensway, Hong Kong | |
Co-Founder, Co-Chairman of the Board of Directors and Independent Director
of the Company; Independent Director of Ctrip
| |
People’s Republic of China (Hong Kong SAR) |
| |
| |
| |
|
Qi Ji | |
c/o 968 Jin Zhong Road, Shanghai 200335, People’s Republic of China | |
Director of Ctrip; Executive Chairman and Chief Executive Officer of China
Lodging Group, Limited
| |
Singapore |
| |
| |
| |
|
Gabriel Li | |
c/o 968 Jin Zhong Road, Shanghai 200335, People’s Republic of China | |
Vice Chairman of Board of Directors of Ctrip; Managing Director and Member
of the Investment Committee of Orchid Asia Group Management
| |
People’s Republic of China (Hong Kong SAR) |
| |
| |
| |
|
JP Gan | |
c/o 968 Jin Zhong Road, Shanghai 200335, People’s Republic of China | |
Director of Ctrip; Managing Director and Member of the Investment Committee
of Qiming Venture Partners
| |
United States |
| |
| |
| |
|
Robin Yanhong Li | |
c/o 968 Jin Zhong Road, Shanghai 200335, People’s Republic of China | |
Director of Ctrip; Chairman of Board of Directors and Chief Executive Officer
of Baidu, Inc. | |
People’s Republic of China |
| |
| |
| |
|
Tony Yip | |
c/o 968 Jin Zhong Road, Shanghai 200335, People’s Republic of China | |
Director of Ctrip; Vice President and Global Head of Investments, Mergers
and Acquisitions of Baidu, Inc.
| |
Australia |
| |
| |
| |
|
Jane Jie Sun | |
c/o 968 Jin Zhong Road, Shanghai 200335, People’s Republic of China | |
Co-President and Chief Operational Officer of Ctrip
| |
Singapore |
| |
| |
| |
|
Jenny Wenjie Wu | |
c/o 968 Jin Zhong Road, Shanghai 200335, People’s Republic of China
| |
Chief Strategy Officer of Ctrip | |
People’s Republic of China (Hong Kong SAR) |
| |
| |
| |
|
Cindy Xiaofan Wang | |
c/o 968 Jin Zhong Road, Shanghai 200335, People’s Republic of China | |
Chief Financial Officer of Ctrip | |
People’s Republic of China |
Mr.
Qi Ji has been a director of Ctrip since its inception in 2009. Mr. Ji has served as the Executive Chairman of the Board of Directors
of China Lodging Group, Limited since February 2007 and served as its Chief Executive Office from February 2007 to August 2009
and from January 2012 to May 2015. China Lodging Group, Limited is a leading multi-brand hotel group in China, and its business
address is 2266, Hongqiao Road, Changning District, Shanghai 200336, People’s Republic of China.
Mr.
Gabriel Li has been Vice Chairman of the Board of Directors of Ctrip since August 2003. Mr. Li has served as a Managing Director
and Member of the Investment Committee of Orchid Asia Group Management, Limited over the past five years. Orchid Asia Group Management,
Limited is an investment group with offices in Shanghai, Beijing, Guangzhou and Hong Kong, and its principal business address
is Unit 2103, 21/F, Tower 3, Jing An Kerry Center, No. 1228 Middle Yan'an Road, Shanghai 200040, People’s Republic of China.
Mr.
JP Gan has been a director of Ctrip since 2002. Mr. Gan has served as a Managing Director and Member of the Investment Committee
of Qiming Venture Partners over the past five years. Qiming Venture Partners is a venture capital firm investing in the Internet
and consumer, healthcare, information technology and clean technology sectors in China. The principal business address of Qiming
Venture Partners is Room3906, Jinmao Tower, 88 Century Boulevard, Shanghai 200121, People’s Republic of China.
Mr.
Robin Yanhong Li has been a director of Ctrip since October 2015. Mr. Li has served as the Chairman of the Board of Directors
of Baidu, Inc. since January 2000 and its Chief Executive Officer since January 2004. Baidu, Inc. is a leading Chinese language
Internet search provider. The business address of Baidu, Inc. is Baidu Campus, 10 Shangdi 10th Street, Haidian District, Beijing
100085, People’s Republic of China.
Mr.
Tony Yip has been a director of Ctrip since October 2015. Mr. Yip has served as Vice President and Global Head of Investments,
Mergers and Acquisitions at Baidu, Inc. since September 2015. Prior to joining Baidu, Inc., Mr. Yip served as a managing director
of TMT Investment Banking at Goldman Sachs in Hong Kong, whose business address is Cheung Kong Center, 68th Floor, 2 Queen’s
Road Central, Hong Kong.
Ms.
Jenny Wenjie Wu has been the Chief Strategy Officer of Ctrip since November 2013. Ms. Wu served as the Chief Financial Officer
of Ctrip from May 2012 to November 2013 and as the Deputy Chief Financial Officer of Ctrip from December 2011 to May 2012. Ms.
Wu was an equity research analyst covering China Internet and Media industries at Morgan Stanley Asia Limited and at Citigroup
Global Markets Asia Limited from 2005 to 2011. The business address of Morgan Stanley Asia Limited is Level 46, International
Commerce Centre, 1 Austin Road West, Kowloon, Hong Kong. The business address of Citigroup Global Markets Asia Limited is 50/F,
Citibank Tower, Citibank Plaza, 3 Garden Road, Central, Hong Kong.
During
the last five years, none of Ctrip or any of its directors or executive officers has been (a) convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or (b) a party to any judicial or administrative proceeding (except for
matters that were dismissed without sanction or settlement) that resulted in a judgment or decree or final order enjoining the
person from future violations of, or prohibiting activities subject to, federal or state securities laws, or a finding of any
violation of federal or state securities laws.
| 8. | Directors
and Executive Officers of Smart Master |
Smart
Master International Limited, or Smart Master, is a company incorporated under the laws of the British Virgin Islands. Smart Master’s
business address is c/o Room 3613, Two Pacific Place, 88 Queensway Hong Kong, and its telephone number is (+852) 2501-8989.
The
name, business address, present principal employment and citizenship of each director of Smart Master are set forth below. Smart
Master does not have any executive officers.
Name | |
Business
Address | |
Present
Principal Employment | |
Citizenship |
Neil Nanpeng Shen | |
c/o Suit 3613, 36/F, 2 Pacific Place, 88 Queensway, Hong Kong | |
Co-Founder, Co-Chairman of the Board of Directors and Independent Director
of the Company; Independent Director of Ctrip
| |
People’s Republic of China (Hong Kong SAR) |
| |
| |
| |
|
Jingxin Yong | |
c/o Suite 3613, Two Pacific Place 88 Queensway Hong Kong | |
Director of Smart Master | |
People’s Republic of China (Hong Kong SAR) |
During
the last five years, none of Smart Master or any of its directors has been (a) convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or (b) a party to any judicial or administrative proceeding (except for matters that were
dismissed without sanction or settlement) that resulted in a judgment or decree or final order enjoining the person from future
violations of, or prohibiting activities subject to, federal or state securities laws, or a finding of any violation of federal
or state securities laws.
Smart
Master is an investment holding vehicle that is owned and controlled by Mr. Shen and his spouse, Jingxin Yong.
| 9. | Directors
and Executive Officers of Peace Unity |
Peace
Unity Investments Limited, or Peace Unity, is a company incorporated under the laws of the British Virgin Islands. Peace Unity’s
business address is c/o No. 124 Caobao Road, Xuhui District, Shanghai, People's Republic of China, and its telephone number is
(+86-21) 3337-3333.
The
name, business address, present principal employment and citizenship of the director of Peace Unity are set forth below. Peace
Unity does not have any executive officers.
Name | |
Business
Address | |
Present
Principal Employment | |
Citizenship |
David Jian Sun | |
c/o No. 124 Caobao Road, Xuhui District, Shanghai, People's Republic of
China | |
Director and Chief Executive Officer of the Company | |
People’s Republic of China |
During
the last five years, none of Peace Unity or any of its directors has been (a) convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or (b) a party to any judicial or administrative proceeding (except for matters that were
dismissed without sanction or settlement) that resulted in a judgment or decree or final order enjoining the person from future
violations of, or prohibiting activities subject to, federal or state securities laws, or a finding of any violation of federal
or state securities laws.
Peace
Unity is an investment holding vehicle that is wholly owned by Townbright Holdings Limited (“Townbright”), a company
incorporated under the laws of the British Virgin Islands. Townbright’s business address is c/o No. 124 Caobao Road, Xuhui
District, Shanghai, People’s Republic of China, and its telephone number is (+86-21) 3337-3333.
The
name, business address, present principal employment and citizenship of the director of Townbright are set forth below. Townbright
does not have any executive officers.
Name | |
Business
Address | |
Present
Principal Employment | |
Citizenship |
David Jian Sun | |
c/o No. 124 Caobao Road, Xuhui District, Shanghai, People's Republic of
China | |
Director and Chief Executive Officer of the Company | |
People’s Republic of China |
During
the last five years, none of Townbright or any of its directors has been (a) convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or (b) a party to any judicial or administrative proceeding (except for matters that were
dismissed without sanction or settlement) that resulted in a judgment or decree or final order enjoining the person from future
violations of, or prohibiting activities subject to, federal or state securities laws, or a finding of any violation of federal
or state securities laws.
Townbright
is an investment holding vehicle that is wholly owned and controlled by Mr. Sun.
| 10. | Directors
and Executive Officers of Wise Kingdom |
Wise
Kingdom Group Limited, or Wise Kingdom, is a company incorporated under the laws of the British Virgin Islands. Wise Kingdom’s
business address is c/o 968 Jin Zhong Road, Shanghai 200335, People’s Republic of China, and its telephone number is (+86-21)
3406-4880.
The
name, business address, present principal employment and citizenship of the director of Wise Kingdom are set forth below. Wise
Kingdom does not have any executive officers.
Name | |
Business
Address | |
Present
Principal Employment | |
Citizenship |
Chung Lau | |
c/o 968 Jin Zhong Road, Shanghai 200335, People’s Republic of China | |
Director of Wise Kingdom | |
People’s Republic of China (Hong Kong SAR) |
During
the last five years, none of Wise Kingdom or any of its directors has been (a) convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or (b) a party to any judicial or administrative proceeding (except for matters that were
dismissed without sanction or settlement) that resulted in a judgment or decree or final order enjoining the person from future
violations of, or prohibiting activities subject to, federal or state securities laws, or a finding of any violation of federal
or state securities laws.
Wise
Kingdom is an investment holding vehicle that is wholly owned and controlled by Ms. Lau.
HOMEINNS
HOTEL GROUP
(Incorporated
in the Cayman Islands with limited liability)
(NASDAQ
Ticker: HMIN)
Form
of Proxy for Extraordinary General Meeting
to
Be Held on March 25, 2016
(or
any adjourned meeting thereof)
THIS
PROXY CARD IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS OF HOMEINNS HOTEL GROUP FOR THE EXTRAORDINARY GENERAL MEETING OF SHAREHOLDERS
TO BE HELD ON MARCH 25, 2016.
I/We,
the undersigned, being the registered holder(s) of
ordinary shares,1 par value US$0.005 per share, of Homeinns Hotel Group, an exempted company with limited liability
incorporated under the laws of the Cayman Islands (the “Company”), hereby acknowledge(s) receipt of the notice
of extraordinary general meeting of shareholders and the proxy statement, each dated February 23, 2016, and hereby appoint(s)
the Chairman of the extraordinary general meeting or
of
2 as my/our proxy (or at any adjourned meeting
thereof) with full power to each of substitution, on behalf and in the name of me/us, to represent me/us at the extraordinary
general meeting of shareholders of the Company to be held at No. 124 Caobao Road, Xuhui District, Shanghai 200235, People’s
Republic of China, at 10:00 a.m. (local time) on March 25, 2016, and at any adjournment thereof, and to vote all ordinary shares
which I/we would be entitled to vote if then and there personally present, on the matters set forth below (i) as specified
by me/us below and (ii) in the discretion of any such proxy upon such other business as may properly come before the meeting,
all as set forth in the notice of extraordinary general meeting and in the proxy statement furnished herewith.
| 1 | Please
insert the number of shares registered in your name(s) to which this proxy relates. If
no number is inserted, this form of proxy will be deemed to relate to all the shares
in the Company registered in your name(s). |
| 2 | If
any proxy other than the Chairman of the extraordinary general meeting is preferred,
strike out the words “the Chairman of the extraordinary general meeting or”
and insert the name and address of the proxy desired in the space provided. A shareholder
may appoint more than one proxy to attend and vote in his stead if he is the registered
holder of more than one shares of the Company. Any alteration made to this form of proxy
must be initialed by the person(s) who sign(s) it. |
This
proxy when properly executed will be voted in the manner directed herein by the undersigned shareholder. If no direction is made,
this proxy will be voted “FOR” the following proposals:
No. |
|
PROPOSALS |
|
FOR3
|
|
AGAINST3
|
|
ABSTAIN3
|
|
|
|
|
|
|
|
|
|
1. |
|
As a special resolution,
THAT the Agreement and Plan of Merger, dated
as of December 6, 2015 (as amended from time to time, the “Merger Agreement”), among BTG Hotels Group (HONGKONG)
Holdings Co., Limited, a company incorporated under the laws of the Hong Kong Special Administrative Region (“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 purposes
of Section 6.02(e), Section 6.08, Section 6.09, Section 8.06, Section 9.09 and Section 9.10 thereof, BTG Hotels (Group)
Co., Ltd., a joint stock company established and existing under the laws of the People’s Republic of China (the
Merger Agreement being in the form attached as Annex A to the accompanying proxy statement and to be produced and made
available for inspection at the extraordinary general meeting), the Plan of Merger (the “Plan of Merger”)
required to be registered with the Registrar of Companies in the Cayman Islands (the Plan of Merger being substantially
in the form attached as Annex B to the accompanying proxy statement and to be produced and made available for inspection
at the extraordinary general meeting) in order to give effect to the merger of Merger Sub with and into the Company, with
the Company continuing as the surviving company (the “Merger”), and any and all transactions contemplated
by the Merger Agreement and the Plan of Merger (collectively, the “Transactions”), including (i) the Merger
and (ii) upon the Merger becoming effective, the amendment and restatement of the existing memorandum and articles of
association of the Company (as the surviving company) by the deletion in their entirety and the substitution in their
place of the new memorandum and articles of association in the form attached as Appendix II to the Plan of Merger, be
authorized and approved. |
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As a special resolution,
THAT each director or officer of the Company
be authorized to do all things necessary to give effect to the Merger Agreement, the Plan of Merger and the Transactions,
including the Merger. |
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If necessary, as an ordinary resolution,
THAT the extraordinary general meeting be adjourned
in order to allow the Company to solicit additional proxies in the event that there are insufficient proxies received
at the time of the extraordinary general meeting to pass the special resolutions to be proposed at the extraordinary general
meeting. |
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Dated:
2016
Shareholder
Name: |
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Co-Owner
Name: |
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Signature4 |
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Co-Owner
Signature4 |
This
Proxy Card must be signed by the person registered in the register of members at the close of business on March 4, 2016 (Cayman
Islands time), and returned to the Company’s offices at No. 124 Caobao Road, Xuhui District, Shanghai 200235, People’s
Republic of China, Attention: Ethan Ruan, no later than March 23, 2016 at 10:00 a.m. (local time).
| 3 | IMPORTANT:
If you wish to vote for a particular resolution, tick the appropriate box marked “FOR.”
If you wish to vote against a particular resolution, tick the appropriate box marked
“AGAINST.” If you wish to abstain from voting on a particular resolution,
tick the appropriate box marked “ABSTAIN.” |
| 4 | This
form of proxy must be signed by you or your attorney duly authorized in writing or, in
the case of a corporation, must be either under seal or executed under the hand of an
officer or attorney duly authorized to sign the same. |
83851
HomeInns VIF Proof 9 Extraordinary General Meeting of Homeinns Hotel Group Date: March 25, 2016 See Voting Instruction On Reverse
Side. Please make your marks like this: x Use dark black pencil or pen only ¡E Mark, sign and date your Voting Instruction
Form. ¡E Detach your Voting Instruction Form. ¡E Return your Voting Instruction Form in the postage-paid envelope
provided. MAIL _____________________________________ __________________________ Please Sign Here Please Date Above _____________________________________
__________________________ Please Sign Here Please Date Above „¦ Please separate carefully at the perforation and
return just this portion in the envelope provided. „¦ Authorized Signatures - This section must be completed for
your instructions to be executed. EVENT # CLIENT # Extraordinary General Meeting of Homeinns Hotel Group to be held on March 25,
2016 For Holders as of February 23, 2016 All votes must be received by 5:00 p.m., New York City Time on March 21, 2016 Copyright
c 2016 Mediant Communications Inc. All Rights Reserved PROXY TABULATOR FOR HOMEINNS HOTEL GROUP P.O. BOX 8016 CARY, NC 27512-9903
Directors Recommend For Against Abstain 1. As a special resolution, THAT the Agreement and Plan of Merger, dated as of December
6, 2015 (as amended from time to time, the ¡§Merger Agreement¡¨), among BTG Hotels Group (HONGKONG) Holdings
Co., Limited, a company incorporated under the laws of the Hong Kong Special Administrative Region (¡§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 purposes of
Section 6.02(e), Section 6.08, Section 6.09, Section 8.06, Section 9.09 and Section 9.10 thereof, BTG Hotels (Group) Co., Ltd.,
a joint stock company established and existing under the laws of the People¡¦s Republic of China (the Merger Agreement
being in the form attached as Annex A to the accompanying proxy statement and to be produced and made available for inspection
at the extraordinary general meeting), the Plan of Merger (the ¡§Plan of Merger¡¨) required to be registered
with the Registrar of Companies in the Cayman Islands (the Plan of Merger being substantially in the form attached as Annex B
to the accompanying proxy statement and to be produced and made available for inspection at the extraordinary general meeting)
in order to give effect to the merger of Merger Sub with and into the Company, with the Company continuing as the surviving company
(the ¡§Merger¡¨), and any and all transactions contemplated by the Merger Agreement and the Plan of Merger
(collectively, the ¡§Transactions¡¨), including (i) the Merger and (ii) upon the Merger becoming effective,
the amendment and restatement of the existing memorandum and articles of association of the Company (as the surviving company)
by the deletion in their entirety and the substitution in their place of the new memorandum and articles of association in the
form attached as Appendix II to the Plan of Merger, be authorized and approved. 2. As a special resolution, THAT each director
or officer of the Company be authorized to do all things necessary to give effect to the Merger Agreement, the Plan of Merger
and the Transactions, including the Merger. 3. If necessary, as an ordinary resolution, THAT the extraordinary general meeting
be adjourned in order to allow the Company to solicit additional proxies in the event that there are insufficient proxies received
at the time of the extraordinary general meeting to pass the special resolutions to be proposed at the extraordinary general meeting.
The Board unanimously recommends that you vote FOR the proposal to authorize and approve the Merger Agreement, the Plan of Merger
and the Transactions, including the Merger and, upon the Merger becoming effective, the amendment and restatement of the memorandum
and articles of association of the Company (as the surviving company) in the form attached to the Plan of Merger, FOR the proposal
to authorize each director or officer of the Company to do all things necessary to give effect to the Merger Agreement, the Plan
of Merger and the Transactions, including the Merger, and FOR the proposal to adjourn the extraordinary general meeting in order
to allow the Company to solicit additional proxies in the event that there are insufficient proxies received at the time of the
extraordinary general meeting to pass the special resolutions to be proposed at the extraordinary general meeting. 83851 HomeInns
VIF.indd 1 2/22/2016 12:10:36 PM
83851
HomeInns VIF Proof 9 HOMEINNS HOTEL GROUP Instructions to The Bank of New York Mellon, as Depositary (Must be received prior to
5:00 P.M. New York time on March 21, 2016) The undersigned registered holder of American Depositary Shares (“ADSs”)
hereby requests and instructs The Bank of New York Mellon, as Depositary, to endeavor, in so far as practicable, to vote or cause
to be voted the amount of shares or other Deposited Securities represented by such ADSs representing shares of HOMEINNS HOTEL
GROUP registered in the name of the undersigned on the books of the Depositary as of the close of business in New York City on
February 23, 2016 at the Extraordinary General Meeting of the Shareholders of HOMEINNS HOTEL GROUP to be held on March 25, 2016
at 10:00 a.m. (local time) at No. 124 Caobao Road, Xuhui District, Shanghai 200235, People’s Republic of China. NOTE: 1.
Please direct the Depositary how it is to vote by marking X in the appropriate box opposite the resolution. It is understood that,
if this form is not signed and returned but no instructions are indicated in the boxes, the Depositary will not vote such items.
PROXY TABULATOR FOR HOMEINNS HOTEL GROUP P.O. Box 8016 CARY, NC 27512-9903 83851 HomeInns VIF.indd 2 2/22/2016 12:10:36 PM
Exhibit (c)-(4)
The original document is in Chinese.
This is an English translation of the document.
Office Memorandum
To: |
Credit Suisse |
Create date: |
2015/07/28 |
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cc: |
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Modify date: |
2015/07/28 |
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From: |
Huatai United/CITIC |
Department: |
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Subject: |
Project House - Indicative Timeline |
¨Urgent
R For Your Review
¨
Reply ASAP ¨
Please Comment
Subject: Project House Indicative
Timeline
Participants: Huatai United
Securities, CITIC Securities, Credit Suisse
I. Indicative
Timeline
Time |
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Going-Private Transaction |
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Share
Exchange Transaction |
August 2015 |
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ü Obtain “preliminary approval” from National Development and Reform Commission (“NDRC”) for this transaction |
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ü Obtain “preliminary approval” from NDRC for the transaction |
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End of August 2015 |
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ü BTG
Hotels to hold Board meeting to review the transaction documents, approve the transaction and announce the transaction |
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ü BTG Hotels to hold Board meeting to review the transaction documents, approve the transaction and announce
the transaction |
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ü Execute Merger Agreement |
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ü Execute Share Exchange Agreement |
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September 2015 |
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ü Submit antitrust filing documents to Ministry of Commerce (“MOFCOM”) |
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ü Submit antitrust filing documents to MOFCOM |
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ü Obtain approval by Beijing State-owned Assets Supervision and Administration Commission (“SASAC”) |
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ü Obtain Beijing SASAC approval |
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ü Complete filing with Beijing Commission of Commerce (“COC”) |
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ü Complete filing with Beijing COC |
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ü Obtain NDRC approval |
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ü Obtain NDRC approval |
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ü BTG Hotels to hold shareholders’ meeting to
review the transaction documents and approve the transaction |
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ü BTG
Hotels to hold shareholders’ meeting to review the transaction documents and approve the transaction |
The original document is in Chinese. This is an English translation
of the document.
|
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ü All transaction parties to jointly submit to SEC Schedule 13E-3 and preliminary proxy statement |
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ü Submit applications to CSRC for the approval of the share exchange transaction |
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ü Submit filing materials to MOFCOM for cross-border share exchange/strategic investment transaction |
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November 2015 |
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ü Antitrust clearance by MOFCOM |
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ü Antitrust clearance by MOFCOM |
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ü Registration with Beijing State Administration of Foreign Exchange (“Beijing SAFE”) |
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ü Obtain in-principle approval from MOFCOM with respect to the cross-border share exchange/strategic investment transaction |
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December 2015 |
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ü In response to SEC comments, expect to submit two rounds of responses to SEC and amend Schedule 13E-3 and proxy statement |
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ü BTG Hotels shares resume trading |
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ü Homeinns to hold shareholders’ meeting to vote on and approve the Merger Agreement |
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ü Completion of this going-private transaction |
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January 2016 |
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ü Obtain CRSC formal approval with respect to the share exchange transaction |
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February 2016 |
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ü Obtain MOFCOM formal approval with respect to the foreign strategic investment related to this share exchange transaction |
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ü Completion of the share exchange transaction |
II. List
of PRC Regulatory Approvals Required for the Going-Private Transaction
1、 |
Beijing SASAC: Approval related to acquisition of assets and overseas investment matters |
2、 |
NDRC: Filing related to acquisition of assets and overseas investment matters |
3、 |
Beijing COC: Filing related to BTG Hotel’s acquisition of assets and overseas investment matters |
4、 |
MOFCOM: review on concentration of business operations related to acquisition of assets |
5、 |
Beijing SAFE: Foreign exchange registration on BTG Hotel’s overseas investment |
Exhibit (c)-(5)
The original document is in Chinese.
This is an English translation of the document.
Office Memorandum
To: |
Credit Suisse |
Create date: |
2015/07/28 |
|
|
|
|
cc: |
|
Modify date: |
2015/07/28 |
|
|
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From: |
Huatai United/CITIC |
Department: |
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|
|
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Subject: |
Project House - Indicative Transaction Structure |
☐
Urgent R For Your Review ☐
Reply ASAP ☐
Please Comment
Subject: Project House
Indicative Transaction Structure
Participants: Huatai United
Securities, CITIC Securities, Credit Suisse
I. Structure
of Going-Private Transaction
In the current going-private
transaction, a buyer group consisting of BTG Hotels, Poly Victory (a BVI company owned by BTG Group), Ctrip, Neil Nanpeng Shen
(who owns Smart Master, a BVI company), David Jian Sun (who owns Peace Unity, a BVI company) and James Jianzhang Liang (“Buyer
Group”) intends to purchase all of the issued and outstanding shares of Homeinns that are not already owned by the buyer
group. The indicative structure of this going-private transaction is as follows:
1. Prior
to execution of Merger Agreement: BTG Hotel will establish a wholly owned holding company in Hong Kong ("HoldCo")
and cause the HoldCo to establish a wholly owned subsidiary ("Merger Sub") in the Cayman Islands, and a bank will issue
a debt financing commitment letter with respect to this going-private transaction prior to the execution of Merger Agreement.
The original document is in Chinese.
This is an English translation of the document.
SPVs will be incorporated prior to the execution
of the Merger Agreement
2. Closing
under the Merger Agreement:
Closing under
the Merger Agreement
Note: The detailed debt financing
plan is being negotiated between BTG and potential banks, which plan may be in the form of borrowings of the equivalent of approximately
RMB 6.5 billion by an offshore SPV (subject to the final plan).
3. Completion
of Closing under Merger Agreement: Merger Sub will
merge with and into the Target with the Target surviving the merger, and the shares of the Merger Sub held by HoldCo will be converted
into the shares of the surviving company. The members of the Buyer Group other than BTG Hotels will continue to hold their respective
shares in Homeinns that they held prior to the merger, representing in aggregate approximately 35% of the total shares, and HoldCo
will hold approximately 65% shares of the surviving company.
The original document is in Chinese.
This is an English translation of the document.
Completion of
Closing under the Merger Agreement
II. Structure
of Subsequent Share Exchange Transaction
Subject to the receipt of relevant PRC regulatory approvals required for the share exchange, the share
exchange transaction among buyer group members will be closed; after the closing of share exchange transaction, Homeinns will become
a wholly owned subsidiary of BTG Hotels.1
Closing of Cross-Border
Share Exchange
1 Currently BTG Group holds shares in Home
Inn Cayman by indirectly holding shares in Poly through BTG (Hong Kong); prior to this share exchange transaction, BTG Group will
conduct internal restructuring within the group, after which BTG Group will hold shares of Homeinns through Poly.
The original document is in Chinese.
This is an English translation of the document.
After Completion of Cross-Border Share
Exchange
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