Exhibit 7.03

 

EXECUTION VERSION

 

EQUITY COMMITMENT LETTER

 

April 15, 2016

 

E-House Holdings Ltd.

 

c/o 11/F Qiushi Building

No. 383 Guangyan Road

Zhabei District

Shanghai 200072

People’s Republic of China

 

Ladies and Gentlemen:

 

This letter agreement sets forth the commitments of Xin Zhou (“ Investor ”), subject to the terms and conditions contained herein, to purchase, directly or indirectly, certain equity interests of E-House Holdings Ltd., a company incorporated under the laws of the Cayman Islands (“ Parent ”). It is contemplated that, pursuant to an Agreement and Plan of Merger (as amended, restated, supplemented or otherwise modified from time to time, the “ Merger Agreement ”) to be entered into among E-House (China) Holdings Limited (the “ Company ”), Parent, and E-House Merger Sub Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands and a wholly-owned subsidiary of Parent (“ Merger Sub ”), Merger Sub will merge with and into the Company (the “ Merger ”), with the Company surviving the Merger as a wholly-owned subsidiary of Parent. Capitalized terms used but not defined herein shall have the meaning ascribed to them in the Merger Agreement.

 

1.                                       Commitment . This letter agreement confirms the commitment of Investor, subject to the terms and conditions set forth herein, to subscribe for (or cause to be subscribed for) equity securities of Parent prior to, at or immediately following the Closing with immediately available funds at an aggregate cash purchase price equal to US$167,693,494 (such sum, the “ Commitment ”), which will be applied by Parent to (i) fund (or cause to be funded through Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to repurchase of any of the Notes) and (ii) pay (or cause to be paid through Merger Sub) related fees and expenses pursuant to the Merger Agreement; provided that Investor shall not, under any circumstances, be obligated to contribute more than the Commitment to Parent and the liability of Investor hereunder shall not exceed the Commitment amount. Investor may effect the purchase of the equity interests of Parent directly or indirectly through one or more direct or indirect Subsidiaries of Investor. In the event Parent does not require the amount of the Commitment specified under this Section 1 in order to consummate the Merger, the amount of the Commitment to be funded under this letter agreement shall be reduced by Investor, to the level sufficient to, in combination with the other financing arrangements contemplated by the Merger Agreement, for Parent and Merger Sub to consummate the transactions contemplated by the Merger Agreement.

 

2.                                       Conditions . The obligation of Investor to fund the Commitment shall be subject to (i) the execution and delivery of the Merger Agreement by the parties thereto and (ii) the satisfaction in full (or waiver, if permissible) at the Closing of each of the conditions to the obligations of Parent and Merger Sub to consummate the Transactions set forth in Section 7.01 and Section 7.02 of the Merger Agreement (other than those conditions that by their terms are to be satisfied at the Closing).

 

 

3.                                       Enforceability . This letter agreement may only be enforced (i) by Parent, or (ii) by the Company to seek specific performance of Investor’s obligation to fund the Commitment, in accordance with Section 9.08(d) of the Merger Agreement.  Neither Parent’s, Merger Sub’s nor the Company’s creditors shall have the right to enforce this letter agreement or to cause Parent to enforce this letter agreement.

 

4.                                       No Recourse . Notwithstanding anything that may be expressed or implied in this letter agreement, or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this letter agreement, the addressee covenants, agrees and acknowledges that no person other than Investor has any obligation hereunder and that, notwithstanding that Investor may be a partnership or limited liability company, the addressee has no right of recovery under this letter agreement or under any document or instrument delivered in connection herewith, or for any claim based on, in respect of, or by reason of, such obligations or their creation, against, and no personal liability shall attach to, the former, current or future directors, officers, employees, agents, advisors, representatives, managers, general or limited partners, members, equity holders, stockholders, controlling persons or Affiliates of Investor or any former, current or future directors, officers, employees, agents, advisors, representatives, managers, general or limited partners, members, equity holders, stockholders, controlling persons or Affiliates of any of the foregoing (each, a “ Investor Affiliate ”), through Investor or otherwise, whether by or through attempted piercing the corporate veil, by or through a claim by or on behalf of Parent against Investor Affiliates, whether by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or applicable Law, or otherwise.

 

5.                                       No Assignment . Investor’s obligation to fund the Commitment may not be assigned and/or delegated, in whole or in part, by any party or by operation of Law or otherwise.  Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Parent without Investor’s and the Company’s prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.

 

6.                                       Termination . This letter, and the obligation of Investor to fund the Commitment, will terminate automatically and immediately upon the earliest to occur of (a) the Closing (subject to the full performance of such obligation at or prior to Closing), (b) the first anniversary of the date hereof, or (c) the valid termination of the Merger Agreement in accordance with its terms; provided that, in the event a claim by the Company or any of its Affiliates under Section 3 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against the Parent or Merger Sub under the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by Investor in connection with this letter agreement.

 

7.                                       No Modification; Entire Agreement . This letter agreement may not be amended, waived or otherwise modified without the prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, of Parent, Investor and the Company.  This letter agreement and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all prior agreements, understandings and statements, written or oral, between Investor or any of its Affiliates, on the one hand, and Parent or any of its Affiliates, on the other, with respect to the transactions contemplated hereby.

 

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8.                                       Governing Law; Jurisdiction . This letter agreement and the schedules hereto shall be governed and construed in accordance with the laws of the State of New York, without regard to any applicable conflicts of law principles that would cause the application of the laws of any other jurisdiction. All actions arising out of or relating to this letter agreement shall be heard and determined exclusively in any New York federal court sitting in the Borough of Manhattan of the City of New York, provided, however, that if such federal court does not have jurisdiction over such action, such action shall be heard and determined exclusively in the New York State Supreme Court Commercial Division in and for New York County, New York. Each of the parties hereto hereby (a) irrevocably submits for itself and in respect of its property, generally and unconditionally, to the exclusive jurisdiction of any of the above-named courts for the purpose of any action arising under the laws of the State of New York out of or relating to this letter agreement brought by any party hereto and (b) irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action with respect to this letter agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this letter agreement and the rights and obligations arising hereunder (i) any claim that it is not personally subject to the jurisdiction of the aforesaid courts for any reason other than the failure to serve process in accordance with this Section 8, (ii) any claim that it or its property is exempt or immune from the jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (iii) to the fullest extent permitted by applicable Law, any claim that (A) the action in such court is brought in an inconvenient forum, (B) the venue of such action is improper or (C) this letter agreement, or the subject matter hereof, may not be enforced in or by such courts. Each of the parties hereto agrees that mailing of process or other papers in connection with any such action in the manner provided herein or in such other manner as may be permitted by applicable Laws, will be valid and sufficient service thereof.

 

9.                                       WAIVER OF JURY TRIAL . EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS LETTER AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY A JURY IN RESPECT OF ANY ACTION ARISING OUT OF OR RELATING TO THIS LETTER AGREEMENT.  EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF AN ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATION OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LETTER AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.

 

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10.                                No Third Party Beneficiaries . Except for the express third party beneficiary rights provided to the Company under Sections 3, 5 and 7 of this letter agreement, the parties hereby agree that their respective representations, warranties and covenants set forth herein are solely for the benefit of the other party hereto, in accordance with and subject to the terms of this letter agreement, and this letter agreement is not intended to, and does not, confer upon any person other than the parties hereto any rights or remedies hereunder or any rights to enforce the Commitment or any provision of this letter agreement.

 

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

 

12.                                Headings .  Headings are used for reference purposes only and do not affect the meaning or interpretation of this letter agreement.

 

13.                                Counterparts . This letter agreement may be signed in any number of counterparts and may be executed and delivered by facsimile or email pdf format, and each counterpart shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

 

14.                                Representations and Warranties.  Investor hereby represents and warrants to Parent that:

 

(a)                                  if Investor is not an individual, it is a legal entity duly organized and validly existing under the laws of its jurisdiction of organization and has all corporate or other requisite power and authority to execute, deliver and perform this letter agreement;

 

(b)                                  if Investor is not an individual, the execution, delivery and performance of this letter agreement have been duly authorized by all necessary action and do not contravene any provision of its charter documents or similar organizational documents;

 

(c)                                   the execution, delivery and performance of this letter agreement do not contravene any Law, regulation, rule, decree, order, judgment or contractual restriction binding on Investor or its assets;

 

(d)                                  all consents, approvals, authorizations and permits of, filings with and notifications to, any Governmental Authority necessary for the due execution, delivery and performance of this letter agreement by Investor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority or regulatory body is required from Investor in connection with the execution, delivery or performance of this letter agreement;

 

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(e)                                   this letter agreement constitutes a legal, valid and binding obligation of Investor enforceable against Investor in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law); and

 

(f)                                    (i) Investor is solvent and shall not be rendered insolvent as a result of its execution and delivery of this letter agreement or the performance of its obligations hereunder, (ii) Investor has the financial capacity to pay and perform its obligations under this letter agreement, and (iii) all funds necessary for Investor to fulfill its obligations under this letter agreement shall be available to Investor for so long as this letter agreement shall remain in effect.

 

[ Remainder of page intentionally left blank ]

 

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	Sincerely,
	XIN ZHOU
	By:	/s/ Xin Zhou

 

[Signature Page to Equity Commitment Letter]

 

 

Agreed to and accepted:
E-HOUSE HOLDINGS LTD.
By:	/s/ Xin Zhou
Name: Xin Zhou
Title: Director

 

[Signature Page to Equity Commitment Letter]

 

Exhibit 7.04

 

EXECUTION VERSION

 

EQUITY COMMITMENT LETTER

 

April 15, 2016

 

E-House Holdings Ltd.

 

c/o 11/F Qiushi Building

No. 383 Guangyan Road

Zhabei District

Shanghai 200072

People’s Republic of China

 

Ladies and Gentlemen:

 

This letter agreement sets forth the commitments of Neil Nanpeng Shen (“ Investor ”), subject to the terms and conditions contained herein, to purchase, directly or indirectly, certain equity interests of E-House Holdings Ltd., a company incorporated under the laws of the Cayman Islands (“ Parent ”). It is contemplated that, pursuant to an Agreement and Plan of Merger (as amended, restated, supplemented or otherwise modified from time to time, the “ Merger Agreement ”) to be entered into among E-House (China) Holdings Limited (the “ Company ”), Parent, and E-House Merger Sub Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands and a wholly-owned subsidiary of Parent (“ Merger Sub ”), Merger Sub will merge with and into the Company (the “ Merger ”), with the Company surviving the Merger as a wholly-owned subsidiary of Parent. Capitalized terms used but not defined herein shall have the meaning ascribed to them in the Merger Agreement.

 

1.                                       Commitment . This letter agreement confirms the commitment of Investor, subject to the terms and conditions set forth herein, to subscribe for (or cause to be subscribed for) equity securities of Parent prior to, at or immediately following the Closing with immediately available funds at an aggregate cash purchase price equal to US$17,522,338 (such sum, the “ Commitment ”), which will be applied by Parent to (i) fund (or cause to be funded through Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to repurchase of any of the Notes) and (ii) pay (or cause to be paid through Merger Sub) related fees and expenses pursuant to the Merger Agreement; provided that Investor shall not, under any circumstances, be obligated to contribute more than the Commitment to Parent and the liability of Investor hereunder shall not exceed the Commitment amount. Investor may effect the purchase of the equity interests of Parent directly or indirectly through one or more direct or indirect Subsidiaries of Investor. In the event Parent does not require the amount of the Commitment specified under this Section 1 in order to consummate the Merger, the amount of the Commitment to be funded under this letter agreement shall be reduced by Investor, to the level sufficient to, in combination with the other financing arrangements contemplated by the Merger Agreement, for Parent and Merger Sub to consummate the transactions contemplated by the Merger Agreement.

 

2.                                       Conditions . The obligation of Investor to fund the Commitment shall be subject to (i) the execution and delivery of the Merger Agreement by the parties thereto and (ii) the satisfaction in full (or waiver, if permissible) at the Closing of each of the conditions to the obligations of Parent and Merger Sub to consummate the Transactions set forth in Section 7.01 and Section 7.02 of the Merger Agreement (other than those conditions that by their terms are to be satisfied at the Closing).

 

 

3.                                       Enforceability . This letter agreement may only be enforced (i) by Parent, or (ii) by the Company to seek specific performance of Investor’s obligation to fund the Commitment, in accordance with Section 9.08(d) of the Merger Agreement.  Neither Parent’s, Merger Sub’s nor the Company’s creditors shall have the right to enforce this letter agreement or to cause Parent to enforce this letter agreement.

 

4.                                       No Recourse . Notwithstanding anything that may be expressed or implied in this letter agreement, or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this letter agreement, the addressee covenants, agrees and acknowledges that no person other than Investor has any obligation hereunder and that, notwithstanding that Investor may be a partnership or limited liability company, the addressee has no right of recovery under this letter agreement or under any document or instrument delivered in connection herewith, or for any claim based on, in respect of, or by reason of, such obligations or their creation, against, and no personal liability shall attach to, the former, current or future directors, officers, employees, agents, advisors, representatives, managers, general or limited partners, members, equity holders, stockholders, controlling persons or Affiliates of Investor or any former, current or future directors, officers, employees, agents, advisors, representatives, managers, general or limited partners, members, equity holders, stockholders, controlling persons or Affiliates of any of the foregoing (each, a “ Investor Affiliate ”), through Investor or otherwise, whether by or through attempted piercing the corporate veil, by or through a claim by or on behalf of Parent against Investor Affiliates, whether by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or applicable Law, or otherwise.

 

5.                                       No Assignment . Investor’s obligation to fund the Commitment may not be assigned and/or delegated, in whole or in part, by any party or by operation of Law or otherwise.  Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Parent without Investor’s and the Company’s prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.

 

6.                                       Termination . This letter, and the obligation of Investor to fund the Commitment, will terminate automatically and immediately upon the earliest to occur of (a) the Closing (subject to the full performance of such obligation at or prior to Closing), (b) the first anniversary of the date hereof, or (c) the valid termination of the Merger Agreement in accordance with its terms; provided that, in the event a claim by the Company or any of its Affiliates under Section 3 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against the Parent or Merger Sub under the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by Investor in connection with this letter agreement.

 

7.                                       No Modification; Entire Agreement . This letter agreement may not be amended, waived or otherwise modified without the prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, of Parent, Investor and the Company.  This letter agreement and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all prior agreements, understandings and statements, written or oral, between Investor or any of its Affiliates, on the one hand, and Parent or any of its Affiliates, on the other, with respect to the transactions contemplated hereby.

 

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8.                                       Governing Law; Jurisdiction . This letter agreement and the schedules hereto shall be governed and construed in accordance with the laws of the State of New York, without regard to any applicable conflicts of law principles that would cause the application of the laws of any other jurisdiction. All actions arising out of or relating to this letter agreement shall be heard and determined exclusively in any New York federal court sitting in the Borough of Manhattan of the City of New York, provided, however, that if such federal court does not have jurisdiction over such action, such action shall be heard and determined exclusively in the New York State Supreme Court Commercial Division in and for New York County, New York. Each of the parties hereto hereby (a) irrevocably submits for itself and in respect of its property, generally and unconditionally, to the exclusive jurisdiction of any of the above-named courts for the purpose of any action arising under the laws of the State of New York out of or relating to this letter agreement brought by any party hereto and (b) irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action with respect to this letter agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this letter agreement and the rights and obligations arising hereunder (i) any claim that it is not personally subject to the jurisdiction of the aforesaid courts for any reason other than the failure to serve process in accordance with this Section 8, (ii) any claim that it or its property is exempt or immune from the jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (iii) to the fullest extent permitted by applicable Law, any claim that (A) the action in such court is brought in an inconvenient forum, (B) the venue of such action is improper or (C) this letter agreement, or the subject matter hereof, may not be enforced in or by such courts. Each of the parties hereto agrees that mailing of process or other papers in connection with any such action in the manner provided herein or in such other manner as may be permitted by applicable Laws, will be valid and sufficient service thereof.

 

9.                                       WAIVER OF JURY TRIAL . EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS LETTER AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY A JURY IN RESPECT OF ANY ACTION ARISING OUT OF OR RELATING TO THIS LETTER AGREEMENT.  EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF AN ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATION OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LETTER AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.

 

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10.                                No Third Party Beneficiaries . Except for the express third party beneficiary rights provided to the Company under Sections 3, 5 and 7 of this letter agreement, the parties hereby agree that their respective representations, warranties and covenants set forth herein are solely for the benefit of the other party hereto, in accordance with and subject to the terms of this letter agreement, and this letter agreement is not intended to, and does not, confer upon any person other than the parties hereto any rights or remedies hereunder or any rights to enforce the Commitment or any provision of this letter agreement.

 

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

 

12.                                Headings .  Headings are used for reference purposes only and do not affect the meaning or interpretation of this letter agreement.

 

13.                                Counterparts . This letter agreement may be signed in any number of counterparts and may be executed and delivered by facsimile or email pdf format, and each counterpart shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

 

14.                                Representations and Warranties.  Investor hereby represents and warrants to Parent that:

 

(a)                                  if Investor is not an individual, it is a legal entity duly organized and validly existing under the laws of its jurisdiction of organization and has all corporate or other requisite power and authority to execute, deliver and perform this letter agreement;

 

(b)                                  if Investor is not an individual, the execution, delivery and performance of this letter agreement have been duly authorized by all necessary action and do not contravene any provision of its charter documents or similar organizational documents;

 

(c)                                   the execution, delivery and performance of this letter agreement do not contravene any Law, regulation, rule, decree, order, judgment or contractual restriction binding on Investor or its assets;

 

(d)                                  all consents, approvals, authorizations and permits of, filings with and notifications to, any Governmental Authority necessary for the due execution, delivery and performance of this letter agreement by Investor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority or regulatory body is required from Investor in connection with the execution, delivery or performance of this letter agreement;

 

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(e)                                   this letter agreement constitutes a legal, valid and binding obligation of Investor enforceable against Investor in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law); and

 

(f)                                    (i) Investor is solvent and shall not be rendered insolvent as a result of its execution and delivery of this letter agreement or the performance of its obligations hereunder, (ii) Investor has the financial capacity to pay and perform its obligations under this letter agreement, and (iii) all funds necessary for Investor to fulfill its obligations under this letter agreement shall be available to Investor for so long as this letter agreement shall remain in effect.

 

[ Remainder of page intentionally left blank ]

 

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	Sincerely,
	NEIL NANPENG SHEN
	By:	/s/ Neil Nanpeng Shen

 

[Signature Page to Equity Commitment Letter]

 

 

Agreed to and accepted:
E-HOUSE HOLDINGS LTD.
By:	/s/ Xin Zhou
Name: Xin Zhou
Title: Director

 

[Signature Page to Equity Commitment Letter]

 

Exhibit 7.05

 

EXECUTION VERSION

 

EQUITY COMMITMENT LETTER

 

April 15, 2016

 

E-House Holdings Ltd.

 

c/o 11/F Qiushi Building

No. 383 Guangyan Road

Zhabei District

Shanghai 200072

People’s Republic of China

 

Ladies and Gentlemen:

 

This letter agreement sets forth the commitments of SINA Corporation (“ Investor ”), subject to the terms and conditions contained herein, to purchase, directly or indirectly, certain equity interests of E-House Holdings Ltd., a company incorporated under the laws of the Cayman Islands (“ Parent ”). It is contemplated that, pursuant to an Agreement and Plan of Merger (as amended, restated, supplemented or otherwise modified from time to time, the “ Merger Agreement ”) to be entered into among E-House (China) Holdings Limited (the “ Company ”), Parent, and E-House Merger Sub Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands and a wholly-owned subsidiary of Parent (“ Merger Sub ”), Merger Sub will merge with and into the Company (the “ Merger ”), with the Company surviving the Merger as a wholly-owned subsidiary of Parent. Capitalized terms used but not defined herein shall have the meaning ascribed to them in the Merger Agreement.

 

1.                                       Commitment . This letter agreement confirms the commitment of Investor, subject to the terms and conditions set forth herein, to subscribe for (or cause to be subscribed for) equity securities of Parent prior to, at or immediately following the Closing with immediately available funds at an aggregate cash purchase price equal to US$139,734,904 (such sum, the “ Commitment ”), which will be applied by Parent to (i) fund (or cause to be funded through Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to repurchase of any of the Notes) and (ii) pay (or cause to be paid through Merger Sub) related fees and expenses pursuant to the Merger Agreement; provided that Investor shall not, under any circumstances, be obligated to contribute more than the Commitment to Parent and the liability of Investor hereunder shall not exceed the Commitment amount. Investor may effect the purchase of the equity interests of Parent directly or indirectly through one or more direct or indirect Subsidiaries of Investor. In the event Parent does not require the amount of the Commitment specified under this Section 1 in order to consummate the Merger, the amount of the Commitment to be funded under this letter agreement shall be reduced by Investor, to the level sufficient to, in combination with the other financing arrangements contemplated by the Merger Agreement, for Parent and Merger Sub to consummate the transactions contemplated by the Merger Agreement.

 

2.                                       Conditions . The obligation of Investor to fund the Commitment shall be subject to (i) the execution and delivery of the Merger Agreement by the parties thereto and (ii) the satisfaction in full (or waiver, if permissible) at the Closing of each of the conditions to the obligations of Parent and Merger Sub to consummate the Transactions set forth in Section 7.01 and Section 7.02 of the Merger Agreement (other than those conditions that by their terms are to be satisfied at the Closing).

 

 

3.                                       Enforceability . This letter agreement may only be enforced (i) by Parent, or (ii) by the Company to seek specific performance of Investor’s obligation to fund the Commitment, in accordance with Section 9.08(d) of the Merger Agreement.  Neither Parent’s, Merger Sub’s nor the Company’s creditors shall have the right to enforce this letter agreement or to cause Parent to enforce this letter agreement.

 

4.                                       No Recourse . Notwithstanding anything that may be expressed or implied in this letter agreement, or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this letter agreement, the addressee covenants, agrees and acknowledges that no person other than Investor has any obligation hereunder and that, notwithstanding that Investor may be a partnership or limited liability company, the addressee has no right of recovery under this letter agreement or under any document or instrument delivered in connection herewith, or for any claim based on, in respect of, or by reason of, such obligations or their creation, against, and no personal liability shall attach to, the former, current or future directors, officers, employees, agents, advisors, representatives, managers, general or limited partners, members, equity holders, stockholders, controlling persons or Affiliates of Investor or any former, current or future directors, officers, employees, agents, advisors, representatives, managers, general or limited partners, members, equity holders, stockholders, controlling persons or Affiliates of any of the foregoing (each, a “ Investor Affiliate ”), through Investor or otherwise, whether by or through attempted piercing the corporate veil, by or through a claim by or on behalf of Parent against Investor Affiliates, whether by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or applicable Law, or otherwise.

 

5.                                       No Assignment . Investor’s obligation to fund the Commitment may not be assigned and/or delegated, in whole or in part, by any party or by operation of Law or otherwise.  Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Parent without Investor’s and the Company’s prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.

 

6.                                       Termination . This letter, and the obligation of Investor to fund the Commitment, will terminate automatically and immediately upon the earliest to occur of (a) the Closing (subject to the full performance of such obligation at or prior to Closing), (b) the first anniversary of the date hereof, or (c) the valid termination of the Merger Agreement in accordance with its terms; provided that, in the event a claim by the Company or any of its Affiliates under Section 3 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against the Parent or Merger Sub under the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by Investor in connection with this letter agreement.

 

7.                                       No Modification; Entire Agreement . This letter agreement may not be amended, waived or otherwise modified without the prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, of Parent, Investor and the Company.  This letter agreement and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all prior agreements, understandings and statements, written or oral, between Investor or any of its Affiliates, on the one hand, and Parent or any of its Affiliates, on the other, with respect to the transactions contemplated hereby.

 

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8.                                       Governing Law; Jurisdiction . This letter agreement and the schedules hereto shall be governed and construed in accordance with the laws of the State of New York, without regard to any applicable conflicts of law principles that would cause the application of the laws of any other jurisdiction. All actions arising out of or relating to this letter agreement shall be heard and determined exclusively in any New York federal court sitting in the Borough of Manhattan of the City of New York, provided, however, that if such federal court does not have jurisdiction over such action, such action shall be heard and determined exclusively in the New York State Supreme Court Commercial Division in and for New York County, New York. Each of the parties hereto hereby (a) irrevocably submits for itself and in respect of its property, generally and unconditionally, to the exclusive jurisdiction of any of the above-named courts for the purpose of any action arising under the laws of the State of New York out of or relating to this letter agreement brought by any party hereto and (b) irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action with respect to this letter agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this letter agreement and the rights and obligations arising hereunder (i) any claim that it is not personally subject to the jurisdiction of the aforesaid courts for any reason other than the failure to serve process in accordance with this Section 8, (ii) any claim that it or its property is exempt or immune from the jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (iii) to the fullest extent permitted by applicable Law, any claim that (A) the action in such court is brought in an inconvenient forum, (B) the venue of such action is improper or (C) this letter agreement, or the subject matter hereof, may not be enforced in or by such courts. Each of the parties hereto agrees that mailing of process or other papers in connection with any such action in the manner provided herein or in such other manner as may be permitted by applicable Laws, will be valid and sufficient service thereof.

 

9.                                       WAIVER OF JURY TRIAL . EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS LETTER AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY A JURY IN RESPECT OF ANY ACTION ARISING OUT OF OR RELATING TO THIS LETTER AGREEMENT.  EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF AN ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATION OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LETTER AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.

 

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10.                                No Third Party Beneficiaries . Except for the express third party beneficiary rights provided to the Company under Sections 3, 5 and 7 of this letter agreement, the parties hereby agree that their respective representations, warranties and covenants set forth herein are solely for the benefit of the other party hereto, in accordance with and subject to the terms of this letter agreement, and this letter agreement is not intended to, and does not, confer upon any person other than the parties hereto any rights or remedies hereunder or any rights to enforce the Commitment or any provision of this letter agreement.

 

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

 

12.                                Headings .  Headings are used for reference purposes only and do not affect the meaning or interpretation of this letter agreement.

 

13.                                Counterparts . This letter agreement may be signed in any number of counterparts and may be executed and delivered by facsimile or email pdf format, and each counterpart shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

 

14.                                Representations and Warranties.  Investor hereby represents and warrants to Parent that:

 

(a)                                  if Investor is not an individual, it is a legal entity duly organized and validly existing under the laws of its jurisdiction of organization and has all corporate or other requisite power and authority to execute, deliver and perform this letter agreement;

 

(b)                                  if Investor is not an individual, the execution, delivery and performance of this letter agreement have been duly authorized by all necessary action and do not contravene any provision of its charter documents or similar organizational documents;

 

(c)                                   the execution, delivery and performance of this letter agreement do not contravene any Law, regulation, rule, decree, order, judgment or contractual restriction binding on Investor or its assets;

 

(d)                                  all consents, approvals, authorizations and permits of, filings with and notifications to, any Governmental Authority necessary for the due execution, delivery and performance of this letter agreement by Investor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority or regulatory body is required from Investor in connection with the execution, delivery or performance of this letter agreement;

 

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(e)                                   this letter agreement constitutes a legal, valid and binding obligation of Investor enforceable against Investor in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law); and

 

(f)                                    (i) Investor is solvent and shall not be rendered insolvent as a result of its execution and delivery of this letter agreement or the performance of its obligations hereunder, (ii) Investor has the financial capacity to pay and perform its obligations under this letter agreement, and (iii) all funds necessary for Investor to fulfill its obligations under this letter agreement shall be available to Investor for so long as this letter agreement shall remain in effect.

 

[ Remainder of page intentionally left blank ]

 

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	Sincerely,
	SINA CORPORATION
	By:	/s/ Charles Chao
	Name: Charles Chao
	Title: Chief Executive Officer

 

[Signature Page to Equity Commitment Letter]

 

 

Agreed to and accepted:
E-HOUSE HOLDINGS LTD.
By:	/s/ Xin Zhou
Name: Xin Zhou
Title: Director

 

[Signature Page to Equity Commitment Letter]

 

Exhibit 7.06

 

EXECUTION VERSION

 

STRICTLY PRIVATE AND CONFIDENTIAL

 

To:                                                                              E-House Merger Sub Ltd. (the “ Borrower ”)

11/F Qiushi Building, No 383 Guangyan Road, Zhabei District, Shanghai 200072,

People’s Republic of China

 

Attention:                                          Xin Zhou

 

April 15, 2016

 

Dear Sirs:

 

EJ — Commitment Letter

 

We, Shanghai Pudong Development Bank Co., Ltd., Nanhui Sub-Branch (as the “ Mandated Lead Arranger” and the “ Underwriter ”), are pleased to set out the terms and conditions on which the Mandated Lead Arranger irrevocably commits to arrange, and the Underwriter irrevocably commits to underwrite and to provide, 100% of a term facility of up to U.S.$350,000,000 (the “ Facility ”).

 

The Facility shall be used (a) to finance part of the Merger Consideration to be paid in connection with the proposed merger (the “ Acquisition ”) between (i) the Borrower, an exempted company with limited liability incorporated under the laws of the Cayman Islands for the purpose of such merger (and which will be as of the date of the Acquisition wholly-owned directly or indirectly by Mr. Xin Zhou (周忻), Mr. Neil Shen (沈南鹏) and SINA Corporation (collectively, the “ Shareholders ”) and (ii) E-House (China) Holdings Limited ( 易居中国 ), an exempted company with limited liability incorporated under the laws of the Cayman Islands (the “ Target ” and 100% of the shares of the Target being the “ Target Shares ”), (b) to finance the payment of fees, costs and expenses in relation to the Acquisition and the Facility, (c) to finance the repayment of part of the US$135 million 2.75% Convertible Senior Notes due 2018 issued by the Target and (d) to finance the funding of the DSRA.

 

This letter is to be read together with the term sheet attached hereto as Appendix A to this letter (the “ Term Sheet ”; together with this letter and appendices attached hereto, this “ Commitment Letter ”).  Each capitalised term defined in the Term Sheet, unless otherwise defined in this Commitment Letter or the other Underwriting Documents (as defined below), has the same meaning when used in this Commitment Letter.  For purposes of the Underwriting Documents:

 

“ Business Day ” means a day (other than a Saturday or Sunday) on which banks are open for general business in Beijing, the Cayman Islands, Hong Kong and New York.

 

“ Fee Letter ” means the fee letter from the Mandated Lead Arranger and the Underwriter to the Borrower dated on or about the date of this Commitment Letter.

 

“ Target Group ” means the Target and its subsidiaries from time to time.

 

“ Underwriting Documents ” means this Commitment Letter (including the Term Sheet and other appendices to this Commitment Letter) and the Fee Letter.

 

1                                          COMMITMENT

 

1.1                                The Mandated Lead Arranger hereby irrevocably commits to arrange, and the Underwriter hereby irrevocably commits to underwrite and provide the whole Facility on and subject to the terms and conditions set out in the Underwriting Documents (such respective commitments by the Mandated Lead Arranger and the Underwriter being the “ Commitments ” of the Mandated Lead Arranger or, as the case may be, the Underwriter).  The Facility shall be made available to you on and subject to the terms set out in the Underwriting Documents.

 

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2                                          GRANT OF MANDATE

 

2.1                                The Mandated Lead Arranger is hereby appointed as exclusive arranger and bookrunner of the Facility and the Underwriter is hereby appointed as exclusive underwriter of the Facility.

 

2.2                                Unless and until this Commitment Letter terminates in accordance with the terms of this Commitment Letter, you shall ensure that none of you, any other Obligor, any Group Member, any Shareholder or any Affiliate of any of the foregoing appoints, or awards any title to, any person (other than the Mandated Lead Arranger and the Underwriter) in connection with arranging and/or underwriting the Facility or any other financing to fund the Acquisition (or any part thereof) without our prior written consent.  Except as otherwise provided in the Underwriting Documents, no fees or compensation in connection with the Facility or any other financing to fund the Acquisition shall be payable to anyone without the prior written consent of the Mandated Lead Arranger.  It is agreed that the references in this paragraph 2.2 to “any other financing to fund the Acquisition” shall not apply to (i) any amounts loaned to the other Shareholders (or entities controlled by them) by SINA Corporation, (ii) any amounts paid by SINA Corporation under the Contribution Agreement/Share Exchange and Option Agreement to be entered into in connection with the Acquisition, (iii) any amounts loaned by the Target or its Subsidiaries to the Shareholders (or entities controlled by them) in connection with the Acquisition, or (iv) any amounts to be made available for the purposes of the Acquisition by the Shareholders (or entities controlled by them).

 

3                                          INFORMATION

 

3.1                                You hereby represent and warrant that:

 

(a)                                  (insofar as it relates to any member of the Target Group, to your knowledge having made due and careful enquiry) all written (including emails) factual information (other than Projections, budgets, estimates, forward looking statements and information of a general economic or general industry nature concerning you or the Target or your or its respective subsidiaries) that has been or will be made available to us by or on behalf of you or any Obligor in connection with the transactions contemplated hereby (the “ Information ”), when taken as a whole, is true and accurate in all material respects and does not or will not, when furnished, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made (after giving effect to all supplements and updates thereto from time to time up to and including the time when such representation or warranty is made or repeated); and

 

(b)                                  any projections and forecasts that have been or will be made available to any of us by or on behalf of you or any Obligor (the “ Projections ”), have been or will be prepared in good faith on the basis of recent historical information and based upon assumptions believed by you in good faith to be reasonable at the time such Projections are furnished (it being recognized by us that such Projections are not to be viewed as facts and are subject to significant uncertainties and contingencies many of which are beyond your control, that no assurance can be given that any particular financial projections will be realized, that actual results may differ from projected results and that such differences may be material).

 

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3.2                                The representations and warranties set out in paragraph 3.1 are deemed to be made by you (a) on the date of this Commitment Letter and (b) (to the extent that they relate to any Information provided on or after the date of this Commitment Letter) on each date on which such Information is provided, in each case, until the date on which the Facility Agreement is signed.

 

3.3                                You shall promptly notify the Mandated Lead Arranger in writing at any time prior to the Closing Date after becoming aware that any representation and warranty set out in paragraph 3.1 above is incorrect or misleading and agree to use commercially reasonable efforts to supplement the Information promptly from time to time to ensure that each such representation and warranty, as supplemented, is correct in any material respect when made.

 

3.4                                Notwithstanding anything to the contrary contained in this Commitment Letter or the Fee Letter, none of the making or repeating of any representation or warranty under this paragraph 3, or the accuracy of any such representation or warranty, shall constitute a condition precedent to the availability and initial funding of the Facility, including, without limitation, under paragraph 4 ( Underwriting Conditions ), the Certain Funds Conditions and Schedule 1 ( Conditions Precedent ) to the Term Sheet, provided that nothing shall prejudice the rights or remedies of the Mandated Lead Arranger, the Underwriter or the Lender with respect to any breach of any such representation or warranty at any time after the expiry of the Certain Funds Period (if such breach arises prior to the expiry of the Certain Funds Period).

 

4                                          UNDERWRITING CONDITIONS

 

4.1                                The Underwriter’s agreement to underwrite and fund the Facility on or before the Closing Date is subject only to satisfaction of the following conditions:

 

(a)                                  execution of a Facility Agreement (that is mutually acceptable to you, the Mandated Lead Arranger and the Underwriter, reflecting and shall be consistent with the terms and conditions set out in the Term Sheet) by all parties thereto in accordance with paragraph 6 ( Execution of Facility Agreement ) of this Commitment Letter;

 

(b)                                  satisfaction (or waiver by the Underwriter) of all conditions precedent to the availability and initial funding of the Facility under this paragraph 4 ( Underwriting Conditions ), the Certain Funds Conditions and Schedule 1 ( Conditions Precedent ) to the Term Sheet;

 

(c)                                   compliance by the Borrower in all material respects with the terms of the Underwriting Documents; and

 

(d)                                  subject to paragraph 5.4, in respect of the Underwriter, it not becoming unlawful after the date of this Commitment Letter in an applicable jurisdiction for the Underwriter (or any Affiliate of such Underwriter) if the Underwriter were to fund, make available and maintain its participation in the Facility and perform its obligations under the Underwriting Documents and the Facility Agreement,

 

and upon satisfaction or waiver (by the Underwriter) of such conditions, the initial funding under the Facility shall occur.

 

5                                          CERTAIN FUNDS

 

5.1                                The Commitments in respect of the Facility are made on a certain funds basis, as set out in the Term Sheet, during the Certain Funds Period.  Accordingly, and notwithstanding anything to the contrary herein or in any Underwriting Document, during the Certain Funds Period, the only conditions precedent to the availability and initial funding of the Facility are as expressly set out in paragraph 4 ( Underwriting Conditions ) of this Commitment Letter, the Certain Funds Conditions and Schedule 1 ( Conditions Precedent ) to the Term Sheet.

 

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5.2                                Each of the Mandated Lead Arranger and the Underwriter confirms that:

 

(a)                                  its Commitments and the Facility have been approved by its credit committees and all other relevant internal bodies of it required to provide such Commitments, and it confirms that it has completed all due diligence required by it;

 

(b)                                  it has completed all internal approval processes and received all final internal approvals required to execute this Commitment Letter and provide its Commitments; and

 

(c)                                   it has completed and is satisfied with the results of all client identification procedures that it is required to carry out in connection with making the Facility available in connection with the Acquisition in compliance with all applicable laws, regulations and internal requirements (including but not limited to all applicable money laundering rules and all “know your customer” requirements).

 

5.3                                The Mandated Lead Arranger and the Underwriter further confirm that the Acquisition Agreement and each of the other material documents in relation to the Acquisition executed by the parties to it (collectively referred to as “ Acquisition Documents (other than the Merger Plan) (each as at the date of this Commitment Letter) have been delivered to the Mandated Lead Arranger and the Underwriter, and in the forms so delivered as at the Commitment Letter are (and subject to them remaining in substantially the same forms, or with such supplements or other modifications (which in the aggregate do not materially and adversely affect the interests of the Mandated Lead Arranger and the Underwriter), when delivered in final form will be) acceptable to the Mandated Lead Arranger and the Underwriter for the purposes of satisfying any of the conditions precedent in Schedule 1 ( Conditions Precedent ) to the Term Sheet which corresponds to that document.

 

5.4                                On or before the Closing Date, if it becomes unlawful in any applicable jurisdiction for the Mandated Lead Arranger or the Underwriter to perform any of its obligations as contemplated by the Underwriting Documents or (in the case of the Underwriter) to fund or maintain its participation under the Facility, the Mandated Lead Arranger or the Underwriter (as appropriate) shall:

 

(a)                                  promptly notify you upon becoming aware of the event; and

 

(b)                                  in consultation with you, take all reasonable steps to mitigate any circumstances which arise and which would result in its obligations under the Underwriting Documents or (in the case of the Underwriter) its Commitment to underwrite and fund the Facility not being available, including (but not limited to) transferring its rights and obligations under the Underwriting Documents to one or more of its Affiliates, provided that :

 

(i)                                      you shall promptly indemnify such Mandated Lead Arranger or Underwriter for all costs and expenses reasonably and properly incurred by such Mandated Lead Arranger or Underwriter as a result of steps taken by it pursuant to this paragraph (b); and

 

(ii)                                   such Mandated Lead Arranger or Underwriter is not obliged to take any such steps if, in the opinion of such Mandated Lead Arranger or Underwriter (acting reasonably), to do so might be materially prejudicial to it.

 

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6                                          EXECUTION OF FACILITY AGREEMENT

 

6.1                                Each of the parties hereto undertake to negotiate in good faith, to use all reasonable commercial efforts and to allocate sufficient resources and personnel for the purposes of such negotiations, to agree the terms of, and upon such agreement to enter into, the Facility Agreement and the other Finance Documents (required to be entered into as a condition precedent to the initial funding of the Facility in Schedule 1 ( Conditions Precedent ) to the Term Sheet), in each case consistent with the Term Sheet, in all relevant capacities, as soon as reasonably practicable following countersigning of this Commitment Letter by the Borrower and in any event by or on the date falling 6 months after the date of this Commitment Letter (or such later date as may be mutually agreed by the parties hereto (each party acting reasonably)) (the “ Proposed Signing Date ”), subject to:

 

(a)                                  your signing and returning to us copies of the Underwriting Documents; and

 

(b)                                  entry into the Acquisition Agreement by the parties thereto.

 

6.2                                The Mandated Lead Arranger’s and the Underwriter’s undertaking under paragraph 6.1 above shall expire on the termination or expiry of this Commitment Letter.

 

6.3                                The Closing Date Transaction Security Documents that are required to be entered into by the Borrower and the Parent as conditions precedent to first drawdown under the Facility Agreement as specified under Schedule 1 to the Term Sheet shall be drafted and negotiated between each of the parties hereto in good faith and on terms consistent with the Term Sheet.

 

7                                          UNDERTAKING TO PAY

 

7.1                                You undertake to pay (or to procure payment) to each of the Indemnified Persons (as defined below) as soon as reasonably practicable, and in any event within 5 Business Days following demand, an amount equal to any liability, damages, cost, loss or expense (each, a “ Loss ”) (including reasonable and documented legal fees) incurred by any of the Mandated Lead Arranger, the Underwriter, the Lender or any of their respective Affiliates or any of their (or their respective Affiliates’) directors, officers, employees or agents (each, an “ Indemnified Person ”) arising out of, in connection with or based on any action, claim, suit, investigation or proceeding (in each case, whether or not any Indemnified Person is party and including any action, claim, investigation or proceeding to preserve or enforce rights) commenced, pending or threatened in relation to:

 

(a)              the Acquisition or other transactions contemplated by the Underwriting Documents and/or the Finance Documents;

 

(b)              the performance by any Indemnified Person of its obligations under any Underwriting Document or any Finance Document;

 

(c)               the use of proceeds of the Facility;

 

(d)              any breach by the Borrower of any of the terms of the Underwriting Documents,

 

except to the extent that such Loss resulted primarily from (a) the gross negligence or wilful misconduct of such Indemnified Person, (b) any breach by such Indemnified Person of any term of the Underwriting Documents or any confidentiality undertaking with any Obligor or any Group Member, (c) any wilful breach by such Indemnified Person of any applicable law or (d) claims of an Indemnified Person solely against one or more other Indemnified Persons and not arising out of any act or omission by you, an Obligor, any Group Member or any Affiliate thereof.

 

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7.2                                You undertake to pay (or to procure payment) to each Indemnified Person on demand an amount equal to any cost or expense (including reasonable and documented legal fees) incurred by such Indemnified Person in connection with investigating, preparing, pursuing or defending any action, claim, suit, investigation or proceeding arising out of, in connection with or based on any of the matters set forth in paragraph 7.1, whether or not any Indemnified Person is a party.

 

7.3                                None of the Mandated Lead Arranger or the Underwriter shall have any duty or obligation, whether as fiduciary for any Indemnified Person or otherwise, to recover any payment made under paragraph 7.1 or 7.2

 

7.4                                You agree that no Indemnified Person shall have any liability (whether direct or indirect, in contract or tort or otherwise) to you or any of your Affiliates for or in connection with anything referred to in paragraph 7.1 except, following your agreement to the Underwriting Documents, for (a) any breach of any Underwriting Document or the Facility Agreement or (b) any such liability for losses, claims, damages or liabilities incurred by you or any of your Affiliates that in each case resulted primarily from the gross negligence or wilful misconduct of that Indemnified Person.  No Indemnified Person shall be responsible or have any liability to you or any of your Affiliates or anyone else for consequential losses or damages.

 

7.5                                Each Indemnified Person shall, to the extent legally permissible and reasonably practicable and (in the determination of such Indemnified Person) not prejudicial to the interests of such Indemnified Person, consult with you in connection with the conduct of any defence in connection with any action, claim, suit, proceeding or investigation against such Indemnified Person in respect of which such Indemnified Person seeks indemnification under paragraph 7.1 or 7.2.  On the date on which the Facility Agreement becomes effective, your obligations under this paragraph 7 shall terminate and be superseded by the relevant terms of the Facility Agreement and this paragraph 7 shall cease to have effect, (in each case) to the extent that equivalent indemnities are given by you under the Facility Agreement and provided that nothing shall prejudice any accrued rights and/or claims under this paragraph 7 at the time when this paragraph 7 is so terminated or superseded.

 

7.6                                All payments to be made by you under the Underwriting Documents:

 

(a)                                  shall be paid in the currency specified in the Underwriting Documents (or, if not so specified, as specified in the applicable invoice(s) for such payment(s)) and in immediately available, freely transferable cleared funds to such account(s) with such bank(s) as the Mandated Lead Arranger, the Underwriter or the applicable Indemnified Person (as the case may be) notifies to you from time to time;

 

(b)                                  shall be paid without any deduction or withholding for or on account of tax (a “ Tax Deduction ”) unless a Tax Deduction is required by law.  If a Tax Deduction is required to be made by law, the amount of the applicable payment due from you shall be increased to an amount which (after making such Tax Deduction) leaves an amount equal to such payment which would have been due if no such Tax Deduction had been required; and

 

(c)                                   are exclusive of any value added tax or similar charge (“ Indirect Tax ”).  If any Indirect Tax is chargeable in respect of any such payment, you shall also and at the same time pay to the recipient of such payment an amount equal to the amount of such Indirect Tax.

 

8                                          FEES AND EXPENSES

 

8.1                                Subject to paragraph 8.3, fees shall be paid as set out in the Fee Letter.

 

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8.2                                It is expressly understood and acknowledged by all parties that notwithstanding any other provision of any Underwriting Document, no fees, costs or expenses will be required to be paid by you or any of your Affiliates (subject to paragraphs 7 and 8.3) under the Underwriting Documents in connection with the Facility unless and until the date of first drawdown of the Facility occurs, except for the Commitment Fees (as defined in the Fee Letter) which is to be paid according to the Fee Letter.

 

8.3                                You shall, within 5 Business Days of written notice from any of us or our legal advisors, pay (or procure payment of) all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented legal fees) incurred by us or any of our Affiliates in connection with the negotiation, preparation, printing and execution of any Underwriting Document or any Finance Document, subject to:

 

(a)                                  cap(s) on legal fees as separately agreed between you and the Mandated Lead Arranger and the Underwriter (or between you and the applicable legal counsel of the Mandated Lead Arranger and the Underwriter); and

 

(b)                                  any cap on our or the Lender’s or any of our or the Lender’s Affiliates’ out-of-pocket expenses separately agreed between you and us or between you and the Lender (as applicable),

 

in each case, including any caps that are agreed to apply in the event that no drawdown is made under the Facility Agreement.

 

8.4                                Your obligations under paragraph 8.3 above shall be effective whether or not the Facility Agreement is signed or any drawdown is made thereunder and whether or not the Closing Date occurs.

 

9                                          CONFIDENTIALITY

 

9.1                                The parties acknowledge that the terms and conditions of the Underwriting Documents are confidential and are not to be disclosed to or relied upon by anyone else, except disclosure of such terms and conditions or a copy of any of them is permitted to the extent made as follows:

 

(a)                                  to the Target Group and the current direct or indirect owners and management of the Target Group or any of their Affiliates and their respective officers, directors, employees, investors and advisors or any of their Affiliates on a “need to know” and confidential basis for purposes of the Acquisition;

 

(b)                                  to the Shareholders, to the Affiliates of any of you, the Shareholders, the Mandated Lead Arranger, the Underwriter and the Lender or to any of your or their respective officers, directors, employees, attorneys, accountants, agents, investors, auditors, agents and advisors on a “need to know” and confidential basis for purposes of the Acquisition and/or the Facility;

 

(c)                                   to any person to the extent required by law, regulation, rule or applicable governmental, regulatory or administrative authority (including any applicable stock exchange and the US Securities and Exchange Commission) or court, or required pursuant to any legal, arbitral or administrative proceedings or process (in which case, the disclosing party agrees to inform the other parties promptly thereof, to the extent permitted by applicable laws);

 

(d)                                  in connection with the establishment of any due diligence defence;

 

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(e)                                   in connection with any preservation or enforcement of rights under any Underwriting Document;

 

(f)                                    by any of the Mandated Lead Arranger or the Underwriter on a “need to know” and confidential basis to any potential Lender looking to participate in the Facility who has been made aware of and agrees to be bound by the obligations under this paragraph 9, on condition that the Mandated Lead Arranger or the Underwriter shall not disclose to any potential Lender any information regarding fees payable under the Fee Letter;

 

(g)                                   to any person by any party to the extent that such information becomes publicly available other than by reason of the violation of this paragraph 9 by any party; or

 

(h)                                  to any person by any party if the other parties consent.

 

9.2                                Notwithstanding anything to the contrary in any Underwriting Document, on the date the Facility Agreement become effective, the obligations of the Mandated Lead Arranger and the Underwriter under this paragraph 9 shall automatically terminate and be superseded by the terms of the Facility Agreement.

 

9.3                                For the avoidance of doubt, the provisions of this paragraph 9 do not supersede any other confidentiality or non-disclosure agreement or undertaking by any of us or our respective Affiliates or our or their respective representatives in favour of you or any of the Shareholders or the Target or any of your or their respective Affiliates (whether directly or indirectly through a back-to-back or similar agreement).

 

10                                   NO ANNOUNCEMENTS

 

Each of the parties shall not make, and shall cause each of its Affiliates not to make, any public announcement regarding the Acquisition or the Facility without the prior consent of each of the other parties (such consent not to be unreasonably withheld or delayed), except to the extent required by law, regulation, rule or applicable governmental or regulatory authority (including any applicable stock exchange and the US Securities and Exchange Commission) or court.  On and after the date on which the Acquisition is publicly announced or disclosed, each of the Mandated Lead Arranger and the Underwriter shall have the right, at its own expense, to disclose its participation in the Facility, including without limitation, the placement of “tombstone” advertisements in financial and other newspapers, journals and in marketing materials.

 

11                                   OTHER ROLES

 

11.1                         You acknowledge that each of the Mandated Lead Arranger, the Underwriter and Affiliates of any or all of the foregoing may provide debt financing, equity capital or other services (including financial advisory services) to other companies in respect of which you or your Affiliates may have conflicting interests regarding the transactions contemplated by the Underwriting Documents, the Acquisition and otherwise.

 

11.2                         You and each of the Mandated Lead Arranger and the Underwriter acknowledge that the Mandated Lead Arranger or any Affiliate thereof, or the Underwriter or any Affiliate thereof, may act in more than one capacity in relation to the transactions contemplated by the Underwriting Documents and/or the Acquisition, and may have conflicting interests in respect of such different capacities.

 

11.3                         None of the Mandated Lead Arranger or the Underwriter shall use confidential information obtained from you or any of your Affiliates by virtue of the transactions contemplated by the Underwriting Documents or its other relationships with you and your Affiliates in connection with the performance by it of services for other companies, or furnish any such information to any such other companies.

 

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11.4                         You acknowledge that none of the Mandated Lead Arranger or the Underwriter has any obligation to use in connection with the transactions contemplated by the Underwriting Documents or the Acquisition, or to furnish to you or any of your Affiliates, confidential information obtained from any other source.

 

11.5                         You further acknowledge that each of the Mandated Lead Arranger, the Underwriter and their respective Affiliates (the “ MLA Parties ”) is or may be 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, each MLA Party may provide investment banking and other financial services to any person, and/or acquire, hold or sell (at its sole discretion), for its own accounts and the accounts of customers, equity, debt and other securities and financial instruments (including bank loans and other obligations) of any Obligor, any member of the Target Group, any of the Shareholders and other companies or entities with which any Obligor, any member of the Target Group or any of the Shareholders may have commercial or other relationships.

 

11.6                         You further acknowledge and agree that you are responsible for making your own independent judgment with respect to the transactions contemplated by the Underwriting Documents and the process leading thereto.  Additionally, you acknowledge and agree that none of the Mandated Lead Arranger or the Underwriter has advised or is advising you as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction.  You shall consult with your own advisors concerning such matters and shall be responsible for making your own independent investigation and appraisal of the transactions contemplated by the Underwriting Documents.

 

12                                   ASSIGNMENT OR TRANSFER

 

12.1                         No party hereto may assign or transfer any of its rights or obligations under the Underwriting Documents without the prior written consent of the other parties.

 

13                                   PERIOD OF OFFER

 

The offer by the Mandated Lead Arranger and the Underwriter set out in this Commitment Letter (the “ Offer ”) shall remain in effect until 5 p.m., Hong Kong time, on 30 April, 2016 (as may be extended by the Mandated Lead Arranger and the Underwriter in writing), at which time it will automatically expire unless before then the Mandated Lead Arranger and the Underwriter have received your written agreement to and written acceptance of each Underwriting Document or this offer is extended in writing by the Mandated Lead Arranger and the Underwriter.

 

14                                   TERMINATION

 

14.1                         Subject to paragraph 15 ( Survival ), this Commitment Letter shall terminate with immediate effect upon the earlier of:

 

(a)                                  any of the Mandated Lead Arranger or the Underwriter giving you notice terminating its obligations under the Underwriting Documents, provided that such notice may only be given if:

 

(i)                                      you inform us in writing that you are withdrawing your offer for the Target Shares or are otherwise abandoning the Acquisition;

 

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(ii)                                   the Acquisition Agreement is terminated in accordance with its terms; or

 

(iii)                                the Closing Date does not occur by the date falling one month after the Termination Date (as defined in the Acquisition Agreement); or

 

(b)                                  the date on which the Offer expires (without being accepted) in accordance with paragraph 13 ( Period of Offer ).

 

14.2                         You shall promptly notify the Mandated Lead Arranger and the Underwriter of any withdrawal by you of your offer for the Target Shares, the abandonment of the Acquisition by you or the occurrence of any event or circumstance falling within paragraph 14.1(a)(ii) or (iii).

 

14.3                         Subject to paragraph 15 ( Survival ), this Commitment Letter shall terminate on the date the Facility Agreement becomes effective.

 

15                                   SURVIVAL

 

15.1                         The terms of paragraph 1 ( Commitment ), paragraph 2 ( Grant of Mandate ), paragraph 3 ( Information) , paragraph 5 ( Certain Funds ), paragraph 6 ( Execution of Facility Agreement ) (insofar as it relates to any Finance Document that is to be executed after execution of the Facility Agreement and that has not yet been entered into), paragraph 7 ( Undertaking to Pay ) (to the extent specified in paragraph 7.5), paragraph 8 ( Fees and Expenses ), paragraph 9 ( Confidentiality ) (to the extent of your obligations thereunder), paragraph 10 ( No Announcements ) to paragraph 12 ( Assignment or Transfer ), and this paragraph 15 to paragraph 20 ( Integration ) inclusive shall survive and continue after the date the Facility Agreement becomes effective, except that your obligations under this Commitment Letter (other than the information update obligations, which obligations shall terminate on the Closing Date) shall automatically terminate and be superseded by the Finance Documents upon the initial funding of the Facility, and you shall be released from all liability in connection therewith at such time.

 

15.2                         Without prejudice to paragraph 15.1, paragraph 8 ( Fees and Expenses ) to paragraph 20 (Integration) inclusive shall survive and continue after any termination or expiry of any Underwriting Document, whether as a result of paragraph 13 ( Period of Offer ), paragraph 14 ( Termination ) or otherwise.

 

16                                   MISCELLANEOUS

 

16.1                         No waiver or amendment of any provision of any Underwriting Document shall be effective unless it is in writing and signed by all of the parties to this Commitment Letter.

 

16.2                         The failure by any of the Mandated Lead Arranger and the Underwriter to exercise or any delay by any of the Mandated Lead Arranger and the Underwriter in exercising any right or remedy shall not constitute a waiver of such right or remedy or a waiver of any other rights or remedies and no single or partial exercise of any right or remedy shall preclude any further exercise thereof, or the exercise of any other right or remedy.  Except as expressly provided in the Underwriting Documents, the rights and remedies of the Mandated Lead Arranger and the Underwriter contained in the Underwriting Documents are cumulative and not exclusive of any rights or remedies provided by law.

 

16.3                         Except for any Indemnified Person, a person who is not a party to this Commitment Letter has no right to enforce or to enjoy the benefit of any term of this Commitment Letter under the Contracts (Rights of Third Parties) Ordinance (Cap. 623).  The Commitments are given for your benefit only and may not be relied upon by any other person.

 

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16.4                         Notwithstanding any other term of this Commitment Letter, the consent of any person who is not a party to this Commitment Letter is not required to rescind or vary this Commitment Letter at any time.

 

16.5                         None of the provisions of any Underwriting Document constitute the Mandated Lead Arranger or the Underwriter a fiduciary, advisor or agent of the Borrower, any Obligor, any Group Member or any Affiliate of any of the foregoing.

 

17                                   COUNTERPARTS

 

Each Underwriting Document may be executed in any number of counterparts, and this has the same effect as if the signatures and/or execution on such counterparts were on a single copy of such Underwriting Document.  Delivery of an executed counterpart of a signature page of an Underwriting Document by facsimile transmission or in electronic format (e.g., “.pdf” or “.tif”) is equally as effective as delivery of an original executed counterpart of that Underwriting Document.

 

18                                   NOTICES

 

18.1                         Any communication to be made under or in connection with any Underwriting Document shall be made in writing and, unless otherwise stated, may be made by fax or letter.

 

18.2                         Notices and communications to be given to you by any of the Mandated Lead Arranger or the Underwriter under any Underwriting Document shall be sent to:

 

Name:                                                            E-House Merger Sub Ltd.

Address:                                                  11/F Qiushi Building, No 383 Guangyan Road, Zhabei District, Shanghai 200072, People’s Republic of China

Attention:                                          Xin Zhou / Weijie Ma

Fax:                                                                        86 21 61330707

Email:                                                             zhouxin@ehousechina.com / wajor@ehousechina.com

or such other address and/or details as may from time to time be notified by you to each of the Mandated Lead Arranger and the Underwriter.

 

18.3                         Notices and communications to be given by you to any of the Mandated Lead Arranger or the Underwriter under any Underwriting Document shall be sent to:

 

(in the case of Shanghai Pudong Development Bank Co., Ltd., Nanhui Sub-Branch)

 

Name:                                                            Shanghai Pudong Development Bank Co., Ltd., Nanhui Sub-Branch
Address:                                                  No.3388, East Renmin Road, Huinan Town, Shanghai China
Attention:                                          Handan Mao
Fax:                                                                        86 21 59028808
Email:                                                             MaoHD@spdb.com.cn

 

or such other address and/or details as may from time to time be notified by the Underwriter or the Mandated Lead Arranger to you.

 

19                                   GOVERNING LAW

 

19.1                         This Commitment Letter (including the agreement constituted by your acknowledgement of its terms) is governed by Hong Kong law.

 

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19.2                         The courts of Hong Kong have exclusive jurisdiction to settle any dispute arising out of or in connection with this Commitment Letter.

 

20                                   INTEGRATION

 

20.1                         The Underwriting Documents set out the entire agreement between you, the Mandated Lead Arranger and the Underwriter as to arranging and underwriting the Facility and supersede any prior oral and/or written understandings or arrangements between the parties hereto relating to the Facility or the financing of the Acquisition.

 

20.2                         Each of the parties hereto agrees that each of the Underwriting Documents is a binding and enforceable agreement with respect to the subject matter contained herein or therein (including an obligation to negotiate in good faith), in each case subject to and in accordance with the terms of the Underwriting Documents.

 

If you agree to the above, please sign, date and return to the Mandated Lead Arranger the enclosed copies of this Commitment Letter and the Fee Letter prior to the time specified in paragraph 13 ( Period of Offer ).  We look forward to working with you on this transaction.

 

Yours faithfully,

 

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For and on behalf of
SHANGHAI PUDONG DEVELOPMENT BANK CO., LTD., NANHUI SUB- BRANCH
as Mandated Lead Arranger
/seal/ Shanghai Pudong Development Bank Co., Ltd., Nanhui Sub-Branch
/s/ Quan Zhong
Name:Quan Zhong
Title:President
For and on behalf of
SHANGHAI PUDONG DEVELOPMENT BANK CO., LTD., NANHUI SUB- BRANCH
as Underwriter
/seal/ Shanghai Pudong Development Bank Co., Ltd., Nanhui Sub-Branch
/s/ Quan Zhong
Name:Quan Zhong
Title:President
We agree the terms set out above.
Date:	April 15, 2016
For and on behalf of
E-House Merger Sub Ltd.
/s/ Xin Zhou
Name: Xin Zhou
Title:Director

 

 

APPENDIX A

 

TERM SHEET

 

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Exhibit 7.07

 

EXECUTION VERSION

 

LIMITED GUARANTEE

 

LIMITED GUARANTEE, dated as of April 15, 2016 (this “ Limited Guarantee ”), by Mr. Xin Zhou, Mr. Neil Nanpeng Shen and SINA Corporation (the “ Guarantors ” and each, a “ Guarantor ”) in favor of E-House (China) Holdings Limited, an exempted company with limited liability incorporated under the Laws of the Cayman Islands (the “ Guaranteed Party ”).  Capitalized terms used but not defined in this Limited Guarantee shall have the meanings assigned to such terms in the Merger Agreement (as defined below).

 

1.                                       GUARANTEE .  (a) To induce the Guaranteed Party to enter into that certain Agreement and Plan of Merger, dated as of the date hereof (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “ Merger Agreement ”), by and among the Guaranteed Party, E-House Holdings Ltd., an exempted company with limited liability incorporated under the Laws of the Cayman Islands (“ Parent ”) and E-House Merger Sub Ltd., an exempted company with limited liability incorporated under the Laws of the Cayman Islands and a wholly-owned subsidiary of Parent (“ Merger Sub ”), pursuant to which, among other things, Merger Sub will merge with and into the Guaranteed Party, each Guarantor, intending to be legally bound, hereby absolutely, unconditionally and irrevocably guarantees to the Guaranteed Party, severally but not jointly, as a primary obligor and not merely as a surety, the due and punctual payment and discharge as and when due of its respective percentage as set forth opposite to its name in Annex I hereto (for each such Guarantor, the “ Guaranteed Percentage ”) of (i) the payment obligations of Parent with respect to the payment of the Parent Termination Fee pursuant to Section 8.06(b) of the Merger Agreement, (ii) the reimbursement and interest obligations of Parent pursuant to Section 8.06(c) of the Merger Agreement, and (iii) the indemnification, reimbursement and expense obligations of Parent under Section 6.17 of the Merger Agreement (collectively, the “ Obligations ”); provided that, notwithstanding anything to the contrary contained in this Limited Guarantee, this Limited Guarantee may be enforced for money damages only and in no event shall any Guarantor’s aggregate liability under this Limited Guarantee exceed such Guarantor’s Guaranteed Percentage of the aggregate amount of the Obligations (for each such Guarantor, the “ Maximum Amount ”).  No Guarantor shall have any obligations or liability to any person relating to, arising out of or in connection with this Limited Guarantee other than as expressly set forth herein.  All payments hereunder shall be made in lawful money of the United States, in immediately available funds.  Each Guarantor acknowledges that the Guaranteed Party entered into the transactions contemplated by the Merger Agreement in reliance on this Limited Guarantee.

 

(b)                                  All payments made by the Guarantors pursuant to this Limited Guarantee shall be free and clear of any deduction, offset, defense, claim or counterclaim of any kind.  Subject to the terms and conditions of this Limited Guarantee, if Parent fails to pay the Obligations as and when due, then all of the Guarantors’ liabilities to the Guaranteed Party hereunder in respect of such Obligations shall become immediately due and payable and the Guaranteed Party may, at the Guaranteed Party’s option and so long as Parent remains in breach of the Obligations, take any and all actions available hereunder or under applicable Law to collect such Obligations from the Guarantors (subject to the Maximum Amount payable by each Guarantor under this Limited Guarantee).  In furtherance of the foregoing, each Guarantor acknowledges that the Guaranteed Party may, in its sole discretion, bring and prosecute a separate action or actions against any Guarantor for the full amount of such Guarantor’s Guaranteed Percentage of the Obligations (subject to the Maximum Amount payable by such Guarantor under this Limited Guarantee), regardless of whether action is brought against Parent, Merger Sub or any other Guarantor or whether Parent, Merger Sub or any other Guarantor is joined in any such action or actions.

 

 

(c)                                   Each Guarantor agrees, severally but not jointly, to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights under this Guarantee which amounts, if paid, will be in addition to the Obligations, if (i) such Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) such Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that such  Guarantor is required to make such payment hereunder.

 

2.                                       NATURE OF GUARANTEE .  This Limited Guarantee is a primary and original obligation of each Guarantor and is a guarantee of payment and performance and not of collection.  Each Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of such Guarantor, extend the time of payment of any of the Guaranteed Obligations, and may also make any agreement with Parent or Merger Sub, for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person without in any way impairing or affecting such Guarantor’s obligations under this Limited Guarantee or affecting the validity or enforceability of this Limited Guarantee. The Guaranteed Party shall not be obligated to file any claim relating to the Obligations in the event that Parent or Merger Sub becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect each Guarantor’s obligations hereunder.  In the event that any payment from any Guarantor to the Guaranteed Party in respect of the Obligations is rescinded or must otherwise be returned to the Guarantor for any reason whatsoever, such Guarantor shall remain liable hereunder with respect to its Guaranteed Percentage of the Obligations (up to its Maximum Amount)  as if such payment had not been made by such Guarantor.  Each Guarantor reserves the right to assert as a defense to such payment by the Guarantors under the Limited Guarantee any rights, remedies and defenses that Parent or Merger Sub may have with respect to payment of any Obligations under the Merger Agreement, other than defenses arising from the bankruptcy or insolvency of Parent or Merger Sub and other defenses expressly waived herein.

 

3.                                       CERTAIN WAIVERS .  Each Guarantor agrees that the obligations of such Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (a) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, or any other person interested in the transactions contemplated by the Merger Agreement; (b) any change in the time, place or manner of payment of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms of the Merger Agreement made in accordance with the terms thereof or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations; (c) any change in the corporate existence, structure or ownership of Parent, Merger Sub, or any other person interested in the transactions contemplated by the Merger Agreement; (d) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person interested in the transactions contemplated by the Merger Agreement; (e) the existence of any claim, set-off or other right that such Guarantor may have at any time against Parent, Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise; or (f) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of any of the Obligations.

 

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Each Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any Obligations and all other notices of any kind (other than notices required to be provided to Parent and Merger Sub under the Merger Agreement), all defenses that may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshaling of assets of any person interested in the transactions contemplated by the Merger Agreement, and all suretyship defenses generally (other than defenses to the payment of the Obligations (x) that are available to Parent or Merger Sub under the Merger Agreement, (y) in respect of a material breach by the Guaranteed Party of this Limited Guarantee or (z) in respect of fraud or willful misconduct of the Guaranteed Party or any of its Affiliates in connection with the Limited Guarantee), including, without limitation, any event, condition or circumstance that might be construed to constitute an equitable or legal discharge of such Guarantor’s obligations hereunder.  Each Guarantor acknowledges that he or it will receive substantial direct and indirect benefits from the transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.

 

Each Guarantor hereby covenants and agrees that it shall not, and shall cause its Related Persons (as defined below) not to, institute any proceeding or bring any other claim (whether in tort, contract or otherwise) asserting that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms, subject to (i) the effects of insolvency, bankruptcy, reorganization or other similar proceedings and (ii) general equitable principles (whether considered in a proceeding in equity or at law).

 

The Guaranteed Party hereby covenants and agrees that it shall not, and shall cause all of its Related Persons not to, institute any proceeding or bring any other claim (whether in tort, contract or otherwise) arising under, or in connection with, the Merger Agreement, the Financing or the transactions contemplated thereby against any Guarantor or any Non-Recourse Party (as defined below), except for the Permitted Claims. The Guaranteed Party hereby agrees that, other than any discharge or release arising from the bankruptcy or insolvency of Parent or Merger Sub and other defenses expressly waived hereby, to the extent Parent or Merger Sub is relieved of all or any portion of its payment obligations under the Merger Agreement, the Guarantors shall be similarly relieved of their corresponding obligations under this Limited Guarantee.

 

4.                                       NO WAIVER; CUMULATIVE RIGHTS .  No failure on the part of the Guaranteed Party to exercise, and no delay in exercising, any right, remedy or power hereunder or under the Merger Agreement shall operate as a waiver thereof, nor shall any single or partial exercise by the Guaranteed Party of any right, remedy or power hereunder preclude any other or future exercise of any right, remedy or power hereunder.  Each and every right, remedy and power hereby granted to the Guaranteed Party or allowed it by Law or other agreement shall be cumulative and not exclusive of any other, and may be exercised by the Guaranteed Party at any time or from time to time.

 

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5.                                       NO RECOURSE .

 

(a)                                  Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party covenants, agrees and acknowledges that no person (other than the Guarantors and any of their permitted assignees) have any obligations under this Limited Guarantee and that neither the Guaranteed Party nor any of its Related Persons has any right of recovery under this Limited Guarantee, or any claim based on such obligations against, and no personal liability shall attach to, any Related Person of any of the Guarantors, Parent or Merger Sub, excluding however any such persons that constitute a Guarantor hereunder or an assignee thereof (each of excluded parties, a “ Non-Recourse Party ” and collectively, the “ Non-Recourse Parties ”), through Parent or Merger Sub or otherwise, whether by or through attempted piercing of the corporate (or limited partnership or limited liability company) veil, by or through a claim by or on behalf of Parent or Merger Sub against any Non-Recourse Party, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or applicable Law, or otherwise, except, in each case, for (i) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee (subject to the limitations contained herein), (ii) claims of the Guaranteed Party against Parent or Merger Sub under and in accordance with the Merger Agreement and (iii) the exercise of the Guaranteed Party’s third party beneficiary rights under and in accordance with the Equity Commitment Letters (the claims described in clauses (i)-(iii), collectively, the “ Permitted Claims ”).

 

(b)                                  The Permitted Claims shall be the sole and exclusive remedy of the Guaranteed Party and all of its Related Persons against such Guarantor and the Non-Recourse Parties in respect of any liabilities or obligations arising under, or in connection with, the Merger Agreement, the Financing or the transactions contemplated thereby.  Nothing set forth in this Limited Guarantee shall affect or be construed to affect any liability of Parent or Merger Sub to the Guaranteed Party under the Merger Agreement or otherwise or give or shall be construed to confer or give to any person other than the Guaranteed Party any rights or remedies against any person, except as expressly set forth in this Limited Guarantee.

 

(c)                                   For the purposes of this Limited Guarantee, pursuit of a claim against a person by the Guaranteed Party or any Related Person of the Guaranteed Party shall be deemed to be pursuit of a claim by the Guaranteed Party.  A person shall be deemed to have pursued a claim against another person if such first person brings a legal action against such second person, adds such second person to an existing legal proceeding or otherwise asserts a legal claim of any nature against such second person.

 

(d)                                  For the purposes of this Limited Guarantee, the term “ Related Person ” shall mean any former, current or future director, officer, employee, agent, advisor, representative, manager, general or limited partner, member, equity holder, stockholder, controlling person or Affiliate of a person or , any former, current or future director, officer, employee, agent, advisor, representative, manager, general or limited partner, member, equity holder, stockholder, controlling person or Affiliate of any of the foregoing, but shall not include Parent, Merger Sub or any of their controlled Affiliates.

 

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6.                                       REPRESENTATIONS AND WARRANTIES .  Each Guarantor hereby represents and warrants to the Guaranteed Party that:

 

(a)                                  if such Guarantor is not an individual, it is a legal entity duly organized and validly existing under the laws of its jurisdiction of organization and has all corporate or other requisite power and authority to execute, deliver and perform this Limited Guarantee;

 

(b)                                  if such Guarantor is not an individual, the execution, delivery and performance of this Limited Guarantee have been duly authorized by all necessary action and do not contravene any provision of its charter documents or similar organizational documents;

 

(c)                                   the execution, delivery and performance of this Limited Guarantee do not contravene any Law, regulation, rule, decree, order, judgment or contractual restriction binding on such Guarantor or its assets;

 

(d)                                  all consents, approvals, authorizations and permits of, filings with and notifications to, any Governmental Authority necessary for the due execution, delivery and performance of this Limited Guarantee by such Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority or regulatory body is required from such Guarantor in connection with the execution, delivery or performance of this Limited Guarantee;

 

(e)                                   this Limited Guarantee constitutes a legal, valid and binding obligation of such Guarantor enforceable against such Guarantor in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law); and

 

(f)                                    (i) such Guarantor is solvent and shall not be rendered insolvent as a result of its execution and delivery of this Limited Guarantee or the performance of its obligations hereunder, (ii) such Guarantor has the financial capacity to pay and perform its obligations under this Limited Guarantee, and (iii) all funds necessary for such Guarantor to fulfill its obligations under this Limited Guarantee shall be available to such Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 9 hereof.

 

7.                                       NO ASSIGNMENT .  No party hereto may assign its rights, interests or obligations hereunder to any other person (except by operation of law) without the prior written consent of each other party hereto.  Any purported assignment in violation of this Limited Guarantee will be null and void and of no force and effect.

 

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8.                                       NOTICES .  All notices, requests and other communications to any party hereunder shall be given in the manner specified in the Merger Agreement (and shall be deemed given as specified therein) as follows:

 

if to the Guarantors, to:

 

Mr. Xin Zhou

Attention: Mr. Xin Zhou

Address: 11/F Qiushi Building, No. 383 Guangyan Road, Zhabei District,
Shanghai 200072, People’s Republic of China

Email: zhouxin@ehousechina.com

 

Mr. Neil Nanpeng Shen

Attention: Mr. Neil Nanpeng Shen

Address: Suite 3613, 36/F, Two Pacific Place, 88 Queensway, Hong Kong

Email: shen@sequoiacap.com

 

SINA Corporation

Attention: Bonnie Zhang, Chief Financial Officer

Address: 20/F Ideal International Plaza, No. 58 North 4th Ring Road West,
Haidian District, Beijing, People’s Republic of China

Email: bonnie@staff.sina.com.cn

 

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

 

Skadden, Arps, Slate, Meagher & Flom LLP

Attention: Z. Julie Gao / Haiping Li

Address: 42/F Edinburgh Tower, The Landmark
15 Queen’s Road Central, Hong Kong

Email: julie.gao@skadden.com / haiping.li@skadden.com

 

if to the Guaranteed Party, to:

 

E-House (China) Holdings Limited

383 Guangyan Road

Qiushi Building, 11/F

Shanghai 200072

People’s Republic of China

Attention: Li-Lan Cheng

Email: chenglilan@ehousechina.com

 

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

 

Davis Polk & Wardwell
Hong Kong Club Building
3A Chater Road, Hong Kong
Attention: Miranda So / Sam Kelso
E-mail: miranda.so@davispolk.com / sam.kelso@davispolk.com

 

or, with respect to notices, requests or other communications directed to any Guarantor, to such other address or facsimile number as such Guarantor shall have notified the Guaranteed Party in a written notice delivered to the Guaranteed Party in accordance with the Merger Agreement.  All notices to the Guaranteed Party hereunder shall be given as set forth in the Merger Agreement.

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9.                                       TERMINATION; CONTINUING GUARANTEE .  Subject to the last sentence of Section 3, this Limited Guarantee shall remain in full force and effect and shall be binding on each Guarantor, its successors and assigns until the earlier of (a) the Effective Time, (b) the valid termination of the Merger Agreement in a circumstance which does not result in any obligation on the part of Parent to pay the Company the Parent Termination Fee or pay any other amounts pursuant to Section 8.06(c) or Section 6.17 of the Merger Agreement, and (c) all amounts payable under this Limited Guarantee shall have been paid in full.  Notwithstanding the foregoing, in the event that the Guaranteed Party or any of its controlled Affiliates asserts in any litigation or other proceeding that any provision of this Limited Guarantee limiting any Guarantor’s liability to the respective Maximum Amount are illegal, invalid or unenforceable in whole or in part or that any Guarantor is liable in excess of or to a greater extent than the respective Maximum Amount, or asserts any theory of liability against any Non-Recourse Party or, other than its rights to recover from the Guarantors with respect to the Obligations, the Guarantors, Parent or Merger Sub with respect to the transactions contemplated by the Merger Agreement, then (x) the obligations of the Guarantors under this Limited Guarantee shall terminate ab initio and be null and void, (y) if any Guarantor has previously made any payments under this Limited Guarantee, he or it shall be entitled to recover such payments and (z) neither the Guarantors nor any Non-Recourse Party shall have any liability to the Guaranteed Party with respect to the Merger Agreement and the transactions contemplated thereby, the Financing or under this Limited Guarantee.

 

10.                                AMENDMENTS AND WAIVERS . No amendment or waiver of any provision of this Limited Guarantee will be valid and binding unless it is in writing and signed, in the case of an amendment, by each Guarantor and the Guaranteed Party, or in the case of waiver, by the party against whom the waiver is to be effective.  No waiver by any party of any breach or violation of, or default under, this Limited Guarantee, whether intentional or not, will be deemed to extend to any prior or subsequent breach, violation or default hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.

 

11.                                ENTIRE AGREEMENT . This Limited Guarantee constitutes the entire agreement with respect to the subject matter hereof and supersedes any and all prior discussions, negotiations, proposals, undertakings, understandings and agreements, whether written or oral, among Parent, Merger Sub and each Guarantor or any of their respective Affiliates on the one hand, and the Guaranteed Party or any of its Affiliates on the other hand.

 

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12.                                GOVERNING LAW; JURISDICTION .  This Limited Guarantee and the schedules hereto shall be governed and construed in accordance with the laws of the State of New York, without regard to any applicable conflicts of law principles that would cause the application of the laws of any other jurisdiction. All actions arising out of or relating to this Limited Guarantee shall be heard and determined exclusively in any New York federal court sitting in the Borough of Manhattan of the City of New York, provided, however, that if such federal court does not have jurisdiction over such action, such action shall be heard and determined exclusively in the New York State Supreme Court Commercial Division in and for New York County, New York. Each of the parties hereto hereby (a) irrevocably submits for itself and in respect of its property, generally and unconditionally, to the exclusive jurisdiction of any of the above-named courts for the purpose of any action arising under the laws of the State of New York out of or relating to this Limited Guarantee brought by any party hereto and (b) irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action with respect to this Limited Guarantee and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Limited Guarantee and the rights and obligations arising hereunder (i) any claim that it is not personally subject to the jurisdiction of the aforesaid courts for any reason other than the failure to serve process in accordance with this Section 12, (ii) any claim that it or its property is exempt or immune from the jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (iii) to the fullest extent permitted by applicable Law, any claim that (A) the action in such court is brought in an inconvenient forum, (B) the venue of such action is improper or (C) this Limited Guarantee, or the subject matter hereof, may not be enforced in or by such courts. Each of the parties hereto agrees that mailing of process or other papers in connection with any such action in the manner provided in Section 8 hereof or in such other manner as may be permitted by applicable Laws, will be valid and sufficient service thereof.

 

13.                                WAIVER OF JURY TRIAL .  EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS LIMITED GUARANTEE IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY A JURY IN RESPECT OF ANY ACTION ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE.  EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF AN ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATION OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 13.

 

14.                                NO THIRD PARTY BENEFICIARIES .  Except for the rights of Non-Recourse Parties provided hereunder, the parties hereto hereby agree that their respective representations, warranties and covenants set forth herein are solely for the benefit of the other parties hereto, in accordance with and subject to the terms of this Limited Guarantee and the Merger Agreement, and this Limited Guarantee is not intended to, and does not, confer upon any person other than the parties hereto any rights or remedies hereunder, including the right to rely upon the representations and warranties set forth herein.

 

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15.                                SEVERABILITY .  If any term or other provision of this Limited Guarantee is invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other conditions and provisions of this Limited Guarantee shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party; provided , however , that this Limited Guarantee may not be enforced against a Guarantor without giving effect to the Maximum Amount of the Guarantor or the provisions set forth in Sections 3, 5, 9 and 15.  No party hereto shall assert, and each party shall cause its respective Related Persons not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.  Upon a determination that any term or provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Limited Guarantee so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.

 

16.                                SUBROGATION. The Guarantors will not exercise against the Parent or the Merger Sub any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Obligation and all other amounts payable under this Limited Guarantee have been paid in full or this Limited Guarantee has terminated in accordance with Section 9 .

 

17.                                HEADINGS .  Headings are used for reference purposes only and do not affect the meaning or interpretation of this Limited Guarantee.

 

18.                                COUNTERPARTS .  This Limited Guarantee may be signed in any number of counterparts and may be executed and delivered by facsimile or email pdf format, and each counterpart shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

 

[ Remainder of page intentionally left blank ]

 

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IN WITNESS WHEREOF, the Guarantors have caused this Limited Guarantee to be executed and delivered as of the date first written above.

 

	XIN ZHOU
	/s/ Xin Zhou

 

[Signature Page to Limited Guarantee]

 

 

IN WITNESS WHEREOF, the Guarantors have caused this Limited Guarantee to be executed and delivered as of the date first written above.

 

	NEIL NANPENG SHEN
	/s/ Neil Nanpeng Shen

 

[Signature Page to Limited Guarantee]

 

 

IN WITNESS WHEREOF, the Guarantors have caused this Limited Guarantee to be executed and delivered as of the date first written above.

 

	SINA CORPORATION
	By:	/s/ Charles Chao
	Name:	Charles Chao
	Title:	Chief Executive Officer

 

[Signature Page to Limited Guarantee]

 

 

IN WITNESS WHEREOF, the Guaranteed Party has caused this Limited Guarantee to be executed and delivered as of the date first written above by its officer thereunto duly authorized.

 

 

	E-HOUSE (CHINA) HOLDINGS LIMITED
	By:	/s/ Winston Li
	Name:	Winston Li
	Title:	Director

 

[Signature Page to Limited Guarantee]

 

 

Annex I

 

Guarantor		Percentage of Obligations
Xin Zhou		51.6	%
Neil Shen		5.4	%
SINA Corporation		43.0	%

 

14

Exhibit 7.08

 

EXECUTION VERSION

 

ROLLOVER AGREEMENT

 

This ROLLOVER AGREEMENT (this “ Agreement ”) is entered into as of April 15, 2016 by and among E-House Holdings Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (“ Parent ”), and the shareholders of E-House (China) Holdings Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands (the “ Company ”), listed on Schedule A hereto (each, a “ Rollover Shareholder ” and collectively, the “ Rollover Shareholders ”). Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Merger Agreement (as defined below).

 

RECITALS

 

WHEREAS, Parent, E-House Merger Sub Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands and a wholly owned subsidiary of Parent (“ Merger Sub ”), and the Company 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, with the Company continuing as the surviving corporation and a wholly owned subsidiary of Parent (the “ Merger ”), upon the terms and subject to the conditions set forth in the Merger Agreement;

 

WHEREAS, as of the date hereof, each Rollover Shareholder is the registered holder and beneficial owner (as defined under Rule 13d-3 of the Exchange Act) of the number of (a) ordinary shares, par value US$0.001 per share, of the Company (the “ Shares ”), including Shares represented by American Depositary Shares, each representing one Share (collectively, the “ Owned Shares ”), (b) Company Options and (c) Company Restricted Shares (together with the Company Options, the “ Share Awards ”), as set forth in the columns titled “Owned Shares,” “Company Options” and “Company Restricted Shares,” as applicable, opposite such Shareholder’s name on Schedule A hereto;

 

WHEREAS, in connection with the consummation of the transactions contemplated by the Merger Agreement, including the Merger, each of the Rollover Shareholders agrees to (a) the cancellation of his or its Owned Shares and the Shares issuable upon vesting and acceleration of the Share Awards for no Merger Consideration (such cancelled Shares collectively, the “ Rollover Shares ”), (b) the cancellation of his or its Share Awards for no consideration, and (c) subscribe for newly issued ordinary shares of Parent (the “ Parent Shares ”) immediately prior to the Closing as set forth in the column titled “Parent Shares” opposite such Rollover Shareholder’s name on Schedule A hereto in accordance with the terms of this Agreement;

 

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

 

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

 

 

AGREEMENT

 

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, and intending to be legally bound hereby, Parent and the Rollover Shareholders hereby agree as follows:

 

Section 1.                                            Cancellation of Rollover Shares and Share Awards . Subject to the terms and conditions set forth herein, each Rollover Shareholder agrees that the Rollover Shares and Share Awards held by him or it shall be cancelled at the Closing for nil consideration.

 

Section 2.                                            Subscription of Parent Shares . Immediately prior to the Closing, Parent shall issue to each Rollover Shareholder, and such Rollover Shareholder (or, if designated by such Rollover Shareholder in writing, an Affiliate of such Rollover Shareholder) shall subscribe for, the number of Parent Shares, at US$0.001 per share, as set forth opposite such Rollover Shareholder’s name on Schedule A hereto. Each Rollover Shareholder hereby acknowledges and agrees that such Rollover Shareholder shall have no right to any Merger Consideration in respect of its Rollover Shares and no right to any consideration in respect of the cancellation of its Share Awards pursuant to Section 2.02 of the Merger Agreement.

 

Section 3.                                            Closing . Subject to the satisfaction in full (or waiver) of all of the conditions set forth in Sections 7.01 and 7.02 of the Merger Agreement (other than conditions that by their nature are to be satisfied or waived, as applicable, at the Closing), the closing of the subscription and issuance of Parent Shares contemplated hereby shall take place immediately prior to the Closing.

 

Section 4.                                            Deposit of Rollover Shares . No later than three (3) Business Days prior to the Closing, the Rollover Shareholders and any agent of the Rollover Shareholders holding certificates evidencing any Rollover Shares shall deliver or cause to be delivered to Parent all certificates representing Rollover Shares in such Persons’ possession, for disposition in accordance with the terms of this Agreement; such certificates and documents shall be held by Parent or any agent authorized by Parent until the Closing.

 

Section 5.                                            Irrevocable Election; Restrictions on Transfers .

 

(a)                                  The execution of this Agreement by the Rollover Shareholders evidences, subject to Section 8 and the proviso in Section 10(l) , the irrevocable election and agreement by the Rollover Shareholders to subscribe for Parent Shares and agree to the cancellation of their respective Rollover Shares and Share Awards on the terms and conditions set forth herein. In furtherance of the foregoing, each Rollover Shareholder covenants and agrees, severally and not jointly, that from the date hereof until any termination of this Agreement pursuant to Section 8 , such Rollover Shareholder shall not, directly or indirectly, (i) tender any equity securities of the Company into any tender or exchange offer, (ii) sell (constructively or otherwise), transfer, pledge, hypothecate, grant, encumber, assign or otherwise dispose of (collectively, “ Transfer ”), or enter into any Contract, option or other arrangement or understanding with respect to the Transfer of, any Owned Shares, Share Awards or other equity securities of the Company or any right, title or interest thereto or therein (including by operation of law) 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 equity securities of the Company and (x) has, or would reasonably be expected to have, the effect of reducing or limiting such Rollover Shareholder’s economic interest in such Owned Shares, Share Awards or other equity securities of the Company and/or (y) grants a third party the right to vote or direct the voting of such Owned Shares, Shares issuable upon vesting and acceleration of Share Awards or other equity securities of the Company (any such transaction, a “ Derivative Transaction ”), (iii) deposit Owned Shares or any equity securities of the Company into a voting trust or grant any proxy or power of attorney or enter into a voting agreement (other than that certain Voting Agreement of even date herewith by and among Parent and certain shareholders of the Company thereto (the “ Voting Agreement ”)) with respect to any Owned Shares or other equity securities of the Company, (iv) knowingly take any action that would make any representation or warranty of such Rollover Shareholder set forth in this Agreement untrue or incorrect or have the effect of preventing, disabling, or delaying such Rollover Shareholder from performing any of his, her, or its obligations under this Agreement, or (v) agree (whether or not in writing) to take any of the actions referred to in the foregoing clauses (i) through (iv). Any purported Transfer in violation of this paragraph shall be null and void and of no force and effect.

 

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(b)                                  Each Rollover Shareholder covenants and agrees, severally and not jointly, that such Rollover Shareholder shall promptly (and in any event within twenty-four (24) hours) notify Parent of any new Shares with respect to which beneficial ownership (within the meaning of Rule 13d-3 of the Exchange Act) is acquired by such Rollover Shareholder, including, without limitation, by purchase, as a result of a share dividend, share split, recapitalization, combination, reclassification, exchange or change of such shares, or upon exercise or conversion of any securities of the Company, if any, after the date hereof. Any such Shares shall automatically become subject to the terms of this Agreement, and Schedule A hereto shall be deemed amended accordingly.

 

Section 6.                                            Representations and Warranties of the Rollover Shareholders . To induce Parent to accept the Rollover Shares and issue the Parent Shares, each Rollover Shareholder makes the following representations and warranties, severally and not jointly, to Parent, each and all of which shall be true and correct as of the date of this Agreement and as of the Closing:

 

(a)                                  Ownership of Shares . Except, with respect to Kanrich Holdings Limited (“ Kanrich ”), On Chance Inc. (“ On Chance ”) and Jun Heng Investment Limited (“ Jun Heng ”) for the aggregate 13,709,875 Shares pledged to Prominent Asset Investment Limited (“ Prominent ”) pursuant to the Share and Account Charge, dated as of March 22, 2013, and the Confirmatory Share and Account Charge, dated as of March 20, 2015 between Kanrich, On Chance, Jun Heng and Prominent, which will be released prior to the Closing, (i) such Rollover 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 Owned Shares and Share Awards set forth opposite its name in Schedule A hereto, free and clear of Liens other than as created by this Agreement and the Voting Agreement, and (B) has and will have sole or shared (together with Affiliates controlled by such Rollover Shareholder) voting power, power of disposition, and power to demand dissenter’s rights (if applicable), in each case with respect to all of such 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 and the terms of this Agreement and the Voting Agreement; (ii) such Rollover Shareholder’s Owned Shares and Share Awards are not subject to any voting trust agreement or other Contract to which such Rollover Shareholder is a party restricting or otherwise relating to the voting or Transfer of such Rollover Shareholder’s Owned Shares and Share Awards other than this Agreement and the Voting Agreement; and (iii) such Rollover Shareholder has not Transferred any of such Rollover Shareholder’s Owned Shares and Share Awards pursuant to any Derivative Transaction. As of the date hereof, other than as set forth on Schedule A hereto, such Rollover 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). Such Rollover Shareholder has not appointed or granted any proxy or power of attorney that is still in effect with respect to any of such Rollover Shareholder’s Owned Shares or Share Awards, except as contemplated by this Agreement or the Voting Agreement.

 

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(b)                                  Organization, Standing and Authority . Each such Rollover Shareholder has full legal right, power, capacity and authority to execute and deliver this Agreement, to perform such Rollover Shareholder’s obligations hereunder and to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by such Rollover Shareholder. Assuming due authorization, execution and delivery by Parent, this Agreement constitutes a legal, valid and binding obligation of such Rollover Shareholder, enforceable against such Rollover Shareholder in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law). If such Rollover Shareholder is married, and any of such Rollover Shareholder’s Owned Shares and Share Awards constitute community property or otherwise need spousal or other approval for this Agreement to be legal, valid and binding, this Agreement has been duly and validly executed and delivered by such Rollover Shareholder’s spouse and, assuming due authorization, execution and delivery by Parent, constitutes a legal, valid and binding obligation of such Rollover Shareholder’s spouse, enforceable against such Rollover Shareholder’s spouse 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).

 

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

 

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(d)                                  Litigation . There is no Action pending against any such Rollover Shareholder or, to the knowledge of such Rollover Shareholder, any other Person or, to the knowledge of such Rollover Shareholder, threatened against any such Rollover Shareholder or any other Person that restricts or prohibits (or, if successful, would restrict or prohibit) the performance by such Rollover Shareholder of its or his obligations under this Agreement.

 

(e)                                   Reliance . Such Rollover Shareholder understands and acknowledges that Parent and Merger Sub are entering into the Merger Agreement in reliance upon such Rollover Shareholder’s execution, delivery and performance of this Agreement.

 

Section 7.                                            Representations and Warranties of Parent . Parent represents and warrants to each Rollover Shareholder that:

 

(a)                                  Organization, Standing and Authority . Parent is duly organized, validly existing and in good standing under the laws of the Cayman Islands and has all requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder.  This Agreement has been duly and validly executed and delivered by Parent and, assuming due authorization, execution and delivery by the Rollover Shareholders subject to the proviso in Section 10(l) , constitutes a legal, valid and binding obligation of Parent, enforceable against Parent in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).

 

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

 

(c)                                   Issuance of Parent Shares . At and immediately after the Closing, there shall be (i) no options, warrants, or other rights to acquire share capital of Parent, (ii) no outstanding securities exchangeable for or convertible into share capital of Parent, and (iii) no outstanding rights to acquire or obligations to issue any such options, warrants, rights or securities. The Parent Shares will be duly authorized, validly issued, fully paid and nonassessable, and free and clear of all Liens, preemptive rights, rights of first refusal, subscription and similar rights (other than those arising under any agreements entered into at the Closing by all of the Rollover Shareholders) when issued.

 

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Section 8.                                            Termination . This Agreement, and the agreement of the Rollover Shareholders to the cancellation of the Rollover Shares, will terminate immediately upon the valid termination of the Merger Agreement in accordance with its terms; provided, that this Section 8 and Section 10 shall survive the termination of this Agreement. Nothing in this Section 8 shall relieve or otherwise limit any party’s liability for any breach of this Agreement prior to the termination of this Agreement.

 

Section 9.                                            Further Assurances . Each Rollover Shareholder hereby covenants that, from time to time, such Rollover Shareholder will do, execute, acknowledge and deliver, or will cause to be done, executed, acknowledged and delivered, such further acts, conveyances, transfers, assignments, powers of attorney and assurances necessary to cancel all of the Rollover Shares in accordance with the terms of this Agreement.

 

Section 10.                                     Miscellaneous .

 

(a)                                  Notices . All notices and other communications hereunder shall be in writing (in the English language) and shall be deemed duly given (i) upon receipt if delivered personally, or if by email or facsimile, upon confirmation of receipt by email or facsimile, (ii) one Business Day after being sent by express courier service, or (iii) three Business Days after being sent by registered or certified mail, return receipt requested. All notices hereunder shall be delivered to the addresses 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.

 

(b)                                  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.

 

(c)                                   Entire Agreement . This Agreement, the Merger Agreement and the Voting 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.

 

(d)                                  Specific Performance . Each Rollover Shareholder acknowledges and agrees that monetary damages would not be an adequate remedy in the event that any covenant or agreement of such Rollover 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 and Merger Sub, Parent 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 Rollover 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 and Merger Sub shall not preclude the simultaneous or later exercise of any other such right, power or remedy by Parent.

 

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(e)                                   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, 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.

 

(f)                                    Governing Law . This Agreement and the schedules hereto shall be governed and construed in accordance with the laws of the State of New York, without regard to any applicable conflicts of law principles that would cause the application of the laws of any other jurisdiction.

 

(g)                                   Dispute Resolution; Jurisdiction; Enforcement . All actions arising out of or relating to this Agreement shall be heard and determined exclusively in any New York federal court sitting in the Borough of Manhattan of the City of New York, provided, however, that if such federal court does not have jurisdiction over such action, such action shall be heard and determined exclusively in the New York State Supreme Court Commercial Division in and for New York County, New York. Each of the parties hereto hereby (a) irrevocably submits for itself and in respect of its property, generally and unconditionally,  to the exclusive jurisdiction of any of the above-named courts for the purpose of any action arising under the laws of the State of New York out of or relating to this Agreement brought by any party hereto and (b) irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action with respect to this Agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder (i) any claim that it is not personally subject to the jurisdiction of the aforesaid courts for any reason other than the failure to serve process in accordance with this Section 10(g) , (ii) any claim that it or its property is exempt or immune from the jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (iii) to the fullest extent permitted by applicable Law, any claim that (A) the action in such court is brought in an inconvenient forum, (B) the venue of such action is improper or (C) this Agreement, or the subject matter hereof, may not be enforced in or by such courts. Each of the parties hereto agrees that mailing of process or other papers in connection with any such action in the manner provided in Section 10(a)  hereof or in such other manner as may be permitted by applicable Laws, will be valid and sufficient service thereof.

 

(h)                                  Waiver of Jury Trial . EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OF THE PARTIES HERETO HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10(h) .

 

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(i)                                      No Third Party Beneficiaries . There are no third party beneficiaries of this Agreement and nothing in this Agreement, express or implied, is intended to or shall 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.

 

(j)                                     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 Rollover Shareholder, his or its estate, heirs, beneficiaries, personal representatives and executors.

 

(k)                                  No Presumption Against Drafting Party . Each of the parties to this Agreement acknowledges that it or he 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.

 

(l)                                      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 Rollover 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.

 

[ Remainder of page intentionally left blank ]

 

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

 

	E-House Holdings Ltd.
	By:	/s/ Xin Zhou
		Name: Xin Zhou
		Title: Director
	Address: c/o 11/F Qiushi Building
	No. 383 Guangyan Road
	Zhabei District
	Shanghai 200072
	People’s Republic of China

 

[Signature Page to Rollover Agreement]

 

 

	ROLLOVER SHAREHOLDERS
	Xin Zhou
	/s/ Xin Zhou
	Address: c/o 11/F Qiushi Building
	No. 383 Guangyan Road
	Zhabei District, Shanghai 200072
	People’s Republic of China
	On Chance Inc.
	By:	/s/ Xin Zhou
		Name: Xin Zhou
		Title: Director
	Address: c/o 11/F Qiushi Building
	No. 383 Guangyan Road
	Zhabei District, Shanghai 200072
	People’s Republic of China
	Kanrich Holdings Limited
	By:	/s/ Xin Zhou
		Name: Xin Zhou
		Title: Director
	Address: c/o 11/F Qiushi Building
	No. 383 Guangyan Road
	Zhabei District, Shanghai 200072
	People’s Republic of China
	Jun Heng Investment Limited
	By:	/s/ Xin Zhou
		Name: Xin Zhou
		Title: Director
	Address: c/o 11/F Qiushi Building
	No. 383 Guangyan Road
	Zhabei District, Shanghai 200072
	People’s Republic of China

 

[Signature Page to Rollover Agreement]

 

 

	ROLLOVER SHAREHOLDERS
	Neil Nanpeng Shen
	/s/ Neil Nanpeng Shen
	Address: c/o Suite 3613, 36/F
	Two Pacific Place, 88 Queensway
	Hong Kong
	Smart Create Group Limited
	By:		/s/ Neil Nanpeng Shen
			Name: Neil Nanpeng Shen
			Title: Director
	Address: c/o Suite 3613, 36/F
	Two Pacific Place, 88 Queensway
	Hong Kong
	Smart Master International Limited
	By:	/s/ Neil Nanpeng Shen
		Name: Neil Nanpeng Shen
		Title: Director
	Address: c/o Suite 3613, 36/F
	Two Pacific Place, 88 Queensway
	Hong Kong

 

[Signature Page to Rollover Agreement]

 

 

	ROLLOVER SHAREHOLDERS
	SINA Corporation
	By:	/s/ Charles Chao
		Name: Charles Chao
		Title: Chief Executive Officer
	Address: 20/F Ideal International Plaza
	No. 58 North 4th Ring Road West
	Haidian District, Beijing
	People’s Republic of China

 

[Signature Page to Rollover Agreement]

 

 

SCHEDULE A

 

Rollover Shares

 

Shareholder		Shares		Company Options		Company Restricted Shares		Parent Shares
Xin Zhou		350,000		3,183,000		150,000		3,683,000
On Chance Inc.		4,064,800		—		—		4,064,800
Kanrich Holdings Limited		17,790,125		—		—		17,790,125
Jun Heng Investment Limited		9,665,000		—		—		9,665,000
Neil Nanpeng Shen		50,000		164,550		15,000		299,550
Smart Create Group Limited		2,084,874		—		—		2,084,874
Smart Master International Limited		1,363,939		—		—		1,363,939
SINA Corporation		29,333,740		—		—		29,333,740

 

A- 1

Exhibit 7.09

 

EXECUTION VERSION

 

VOTING AGREEMENT

 

This VOTING AGREEMENT (this “ Agreement ”) is entered into as of April 15, 2016 by and among E-House Holdings Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (“ Parent ”), and the shareholders of E-House (China) Holdings Limited, 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, Parent, E-House Merger Sub Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands and a wholly owned subsidiary of Parent (“ Merger Sub ”), and the Company 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, with the Company continuing as the surviving corporation and a wholly owned subsidiary of Parent (the “ Merger ”), upon the terms and subject to the conditions set forth in the Merger Agreement;

 

WHEREAS, as of the date hereof, each Shareholder is the beneficial owner (as defined under Rule 13d-3 of the Exchange Act) of certain ordinary shares, par value US$0.001 per share, of the Company (the “ Shares ”) (including Shares represented by American Depositary Shares, each representing one Share) as set forth in the column titled “Owned Shares” opposite such Shareholder’s name on Schedule A hereto (the “ Owned Shares ”) (the Owned Shares, together with any other Shares acquired (whether beneficially or of record) by the Shareholder after the date hereof and 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, Parent and certain Shareholders have, concurrently with the execution of this Agreement, entered into a Rollover Agreement, dated as of the date hereof (as may be amended, supplemented or otherwise modified from time to time, the “ Rollover Agreement ”), which provides, among other things, for the cancellation of Shares and Share Awards beneficially owned by such Shareholders for no Merger Consideration and subscription of newly issued ordinary shares of Parent immediately prior to the Closing;

 

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

 

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

 

 

NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto 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 Effective Time 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 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) — (d) 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 or his representative(s) to appear at such meeting or otherwise cause its or his 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 the authorization and approval of the Merger Agreement, the Plan of Merger and the Transactions and any other matter necessary to effect the Transactions,

 

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

 

(c)                                   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, and

 

(d)                                  in favor of any adjournment or postponement of the Shareholders’ Meeting as may be reasonably requested by Parent.

 

Section 1.2                                     Grant of Irrevocable Proxy; Appointment of Proxy .

 

(a)                                  Each Shareholder hereby irrevocably appoints Parent and any designee thereof as its or his 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 in accordance with Section 1.1 above at the 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 has revoked (or caused 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 (or cause to be taken) such further action or execute such other instruments as may be necessary to effectuate the intent of this proxy.

 

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(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 the Rollover Agreement 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 (other than Securities issued upon the exercise of any Company options or the vesting of Company restricted shares), (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 or materially delaying such Shareholder from performing any of its or his 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). Any purported Transfer or Derivative Transaction in violation of this paragraph shall be null and void and of no force and effect.

 

ARTICLE II

 

REPRESENTATIONS, WARRANTIES AND COVENANTS
 OF THE SHAREHOLDERS

 

Section 2.1                                     Representations and Warranties . Each Shareholder, severally and not jointly, represents and warrants to Parent as of the date hereof and as of the Closing:

 

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(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, 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)                                  except, with respect to Kanrich Holdings Limited (“ Kanrich ”), On Chance Inc. (“ On Chance ”) and Jun Heng Investment Limited (“ Jun Heng ”) for the aggregate 13,709,875 Shares pledged to Prominent Asset Investment Limited (“ Prominent ”) pursuant to the Share and Account Charge, dated as of March 22, 2013, and the Confirmatory Share and Account Charge, dated as of March 20, 2015 between Kanrich, On Chance, Jun Heng and Prominent, which will be released prior to the Closing (i) such 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 (if applicable), 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 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 and the Rollover Agreement, as applicable; (iii) such Shareholder has not Transferred any Securities pursuant to any Derivative Transaction; (iv) as of the date hereof, other than as set forth on Schedule A hereto, 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); 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;

 

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

 

(g)                                   each Shareholder understands and acknowledges that Parent and Merger Sub are entering into the Merger Agreement in reliance upon such Shareholder’s execution, delivery and performance of this Agreement.

 

Section 2.2                                     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 or his obligations under this Agreement;

 

(b)                                  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;

 

(c)                                   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 Shares or other equity securities of the Company and the nature of such Shareholder’s commitments, arrangements and understandings under this Agreement and the Rollover Agreement, as applicable;

 

(d)                                  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 beneficial ownership (within the meaning of Rule 13d-3 of the Exchange Act) is acquired by such Shareholder, including, without limitation, by purchase, as a result of a share dividend, share 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 (any such Shares shall automatically become subject to the terms of this Agreement, and Schedule A hereto shall be deemed amended accordingly); and

 

(e)                                   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.

 

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ARTICLE III

 

REPRESENTATIONS AND WARRANTIES OF PARENT

 

Section 3.1                                     Representations and Warranties . Parent hereby represents and warrants to each Shareholder as follows: (a) this Agreement has been duly and validly authorized by Parent’s board of directors, (b) this Agreement has been duly executed and delivered by a duly authorized officer or other representative of Parent, and (c) assuming this Agreement constitutes a valid and binding agreement of Shareholders, this Agreement constitutes a valid and binding agreement of Parent, enforceable against Parent in accordance with its terms, and (d) the execution and delivery of this Agreement by Parent does not, and the consummation of the transactions contemplated hereby and the compliance with the provisions hereof will not, conflict with or violate any law or agreement binding upon Parent, nor require any authorization, consent or approval of, or filing with, any Governmental Authority, except for filings with the Securities and Exchange Commission.

 

ARTICLE IV

 

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 Expiration Time. Notwithstanding the preceding sentence, this Article  IV and Article V shall survive any termination of this Agreement. Nothing in this Article  IV shall relieve or otherwise limit any party’s liability for any breach of this Agreement prior to the termination of this Agreement.

 

ARTICLE V

 

MISCELLANEOUS

 

Section 5.1                                     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 5.2                                     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 or his capacity as a beneficial owner of the Securities owned by such Shareholder 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, as a director or officer of the Company, any action which is inconsistent with its or his fiduciary duties under the applicable Laws, and no action taken in such Shareholder’s capacity as a director or officer of the Company shall be a breach of this Agreement.

 

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Section 5.3                                     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 5.4                                     Entire Agreement . This Agreement, the Merger Agreement and the Rollover Agreement together 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 5.5                                     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 and Merger Sub, Parent 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 and Merger Sub shall not preclude the simultaneous or later exercise of any other such right, power or remedy by Parent.

 

Section 5.6                                     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, 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 5.7                                     Governing Law . This Agreement and the schedules hereto shall be governed and construed in accordance with the laws of the State of New York, without regard to any applicable conflicts of law principles that would cause the application of the laws of any other jurisdiction.

 

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Section 5.8                                     Dispute Resolution; Jurisdiction; Enforcement . All actions arising out of or relating to this Agreement shall be heard and determined exclusively in any New York federal court sitting in the Borough of Manhattan of the City of New York, provided, however, that if such federal court does not have jurisdiction over such action, such action shall be heard and determined exclusively in the New York State Supreme Court Commercial Division in and for New York County, New York. Each of the parties hereto hereby (a) irrevocably submits for itself and in respect of its property, generally and unconditionally,  to the exclusive jurisdiction of any of the above-named courts for the purpose of any action arising under the laws of the State of New York out of or relating to this Agreement brought by any party hereto and (b) irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action with respect to this Agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder (i) any claim that it is not personally subject to the jurisdiction of the aforesaid courts for any reason other than the failure to serve process in accordance with this Section 5.8 , (ii) any claim that it or its property is exempt or immune from the jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (iii) to the fullest extent permitted by applicable Law, any claim that (A) the action in such court is brought in an inconvenient forum, (B) the venue of such action is improper or (C) this Agreement, or the subject matter hereof, may not be enforced in or by such courts. Each of the parties hereto agrees that mailing of process or other papers in connection with any such action in the manner provided in Section 5.1 hereof or in such other manner as may be permitted by applicable Laws, will be valid and sufficient service thereof.

 

Section 5.9                                     Waiver of Jury Trial . EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OF THE PARTIES HERETO HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 5.9 .

 

Section 5.10                              No Third Party Beneficiaries . There are no third party beneficiaries of this Agreement and nothing in this Agreement, express or implied, is intended to or shall 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 5.11                              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.

 

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Section 5.12                              No Presumption Against Drafting Party . Each of the parties to this Agreement acknowledges that it or he 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 5.13                              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 ]

 

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

 

	E-House Holdings Ltd.
	By:	/s/ Xin Zhou
		Name:	Xin Zhou
		Title:	Director
	Address: c/o 11/F Qiushi Building
	No. 383 Guangyan Road
	Zhabei District
	Shanghai 200072
	People’s Republic of China

 

[Signature Page to Voting Agreement]

 

 

	SHAREHOLDERS
	Xin Zhou
	/s/ Xin Zhou
	Address: c/o 11/F Qiushi Building
	No. 383 Guangyan Road
	Zhabei District, Shanghai 200072
	People’s Republic of China
	On Chance Inc.
	By:		/s/ Xin Zhou
			Name:		Xin Zhou
			Title:		Director
	Address: c/o 11/F Qiushi Building
	No. 383 Guangyan Road
	Zhabei District, Shanghai 200072
	People’s Republic of China
	Kanrich Holdings Limited
	By:		/s/ Xin Zhou
			Name:	Xin Zhou
			Title:	Director
	Address: c/o 11/F Qiushi Building
	No. 383 Guangyan Road
	Zhabei District, Shanghai 200072
	People’s Republic of China
	Jun Heng Investment Limited
	By:	/s/ Xin Zhou
		Name:		Xin Zhou
		Title:		Director
	Address: c/o 11/F Qiushi Building
	No. 383 Guangyan Road
	Zhabei District, Shanghai 200072
	People’s Republic of China

 

[Signature Page to Voting Agreement]