January 15, 2021
To: Xxxxxxx LE Xx Xxxx
Suite 1701, One Exchange Square, 0 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxx Xxxx
Re: CAR Inc. (神州租車有限公司) (“Company”) Non-Executive Director
We hereby appoint you as a non-executive director of the Company (“Non-Executive Director”) on and subject to the terms and conditions specified herein.
1. APPOINTMENT AND TERM
1.1 Your appointment as a Non-Executive Director shall take effect immediately upon the execution of this letter and shall continue subject as hereinafter mentioned for a period of three (3) years from such date (subject always to re- election as and when required under the articles of association of the Company, as amended and supplemented from time to time (“Articles”)) unless otherwise terminated in accordance with the terms and conditions specified herein (“Term”).
1.2 Your continuing appointment as a Non-Executive Director is subject to the terms of this letter, the provisions of the Company’s memorandum of association (as amended and supplemented from time to time) (“Memorandum”), the Articles, the Rules Governing the Listing of Securities on The Stock Exchange of Hong Kong Limited (“Stock Exchange”) (as amended from time to time) (“Listing Rules”) and any other applicable laws, rules and regulations.
2. DIRECTOR’S DUTIES AND SERVICES
2.1 You in your office as a Non-Executive Director shall:-
(a) devote such of your time and your attention and skill as may reasonably be required to discharge the duties of your office;
(b) faithfully and diligently perform such duties and exercise such powers consistent with the office to which you are appointed; and
(c) comply with all applicable laws, rules and regulations (as amended from time to time), including but not limited to the Listing Rules, the Securities and Futures Ordinance (Chapter 571 of the Laws of Hong Kong) (“SFO”) and rules made thereunder, and the Company’s rules,
regulations, policies and procedures from time to time in force.
2.2 You will generally be required to attend general meetings of the Company, meetings of the board of directors of the Company (the “Board”) and of any Board committees, including but not limited to the audit committee, the nomination committee and the remuneration committee of the Company, to which you might be appointed as the chairman or a member. If you are unavoidably unable to attend, as much prior notice as required under the Articles, the Listing Rules or any other applicable laws, rules and regulations should be given to the chairman of the Board.
2.3 You shall at all times keep the Board promptly and fully informed (in writing if so requested) of all other directorships and other (direct or indirect) interests, employment, consultancies or associations held by you, including all interests in the shares of the Company, in each as may be required to be disclosed by you under the Listing Rules, the SFO or any applicable laws, and any of your business or other activities which would or is likely to cause you to be in conflict with the interests of the Company or any of its subsidiaries.
2.4 You undertake to the Company to inform the Board if you cease to qualify, or if you come to know of any circumstances that may render you no longer qualified as a Non-Executive Director under the Listing Rules, the Articles or any other applicable laws, rules and regulations. If the Board or the Stock Exchange considers that you are no longer qualified as a Non-Executive Director of the Company and informs you thereof, your appointment will terminate automatically and you shall tender your resignation as a Non- Executive Director.
3.1 During the Term, the Company shall reimburse you of all reasonable expenses (including expenses incurred for business class travel and per diem accommodation) properly and reasonably incurred by you in the performance of your duties hereunder (including attending Board or committee meetings) or otherwise in connection with the business of the Company, subject to expenses being evidenced by an itemized receipt or in such other manner as the Board may require.
4. RESTRICTIONS ON SHARE DEALINGS
4.1 During the Term, you shall comply with (i) all applicable laws, rules and regulations, including but not limited to the Listing Rules and the SFO; and (ii) every regulation of the Company for the time being in force in relation to dealings in shares or other securities of the Company or any other member of the Group (as defined in Clause 4.2).
4.2 For the purpose of this letter, the “Group” means the Company and its subsidiaries (having the meaning ascribed thereto in the Listing Rules).
5.1 Your appointment as a Non-Executive Director hereunder shall be subject to termination by the Company at any time by notice in writing if you commit any breach of any of your material obligations and/or undertakings hereunder or commits an act of bankruptcy or commits any act which would, under any applicable laws, rules and regulations, permit the Company to terminate your appointment hereunder.
5.2 You and the Company shall be entitled to terminate your appointment as a Non- Executive Director hereunder at any time by giving to the other party at least one (1) month’s notice in writing.
5.3 On the termination of your appointment as a Non-Executive Director hereunder (howsoever arising) becoming effective, you shall automatically be removed from your position with immediate effect.
5.4 Termination of your appointment as a Non-Executive Director hereunder shall be without prejudice to any rights which have accrued to the parties hereto prior to such termination or to the provisions of Clause 7 herein.
You will be covered by any directors’ and officers’ liability insurance that the Company (in its absolute discretion) purchases for the rest of the Board.
7. DIRECTOR’S UNDERTAKINGS
7.1 You are reminded that you owe fiduciary duties and obligations as a director of the Company and, consistent with such duties and obligations, you agree that you shall at all times during the Term comply with the Board’s rules and policies on governance matters and decision-making processes including with respect to the disclosure of personal and family interests and conflicts of interests (whether actual or potential). You understand that such rules, policies and processes may include the establishment of sub-committees with independent non-executive director(s)’ involvement or oversight.
7.2 You undertake to the Company that you will not, during the Term and for 6 months thereafter (“Restricted Period”), divulge or communicate to any person whomsoever or to any firm, partnership, company, business or body corporate, use or employ for your own purposes or for any purposes other than those of the Group, any trade secret or any confidential information concerning the business or finances of any member of the Group (including without limitation all data, manuals and instructions, customer lists, supplier lists, business plans and forecasts, technical or other expertise and computer software, accounting and tax records, and correspondence which are confidential or not generally known) or any of its confidential dealings, transactions or affairs which may come to your knowledge during the Term.
7.3 Forthwith upon the termination of your appointment as a Non-Executive Director hereunder, and/or at any other time if the Company shall so request,
you shall deliver to the Company all books, records (including but not limited to those in machine readable or eye readable form), memorandum, reports, documents, papers, materials, correspondence and accounts made or compiled by or delivered to you during your appointment as a Non-Executive Director hereunder and concerning the business, finances or affairs of any member of the Group (except as may be required by applicable laws, rules or regulatory recordkeeping requirements and the respective corporate governance and recordkeeping policies of MBK Partners Special Situations Fund I, L.P. and/or its affiliates (“MBK Partners”)). For the avoidance of doubt, it is hereby declared that the ownership of the information all such documents as aforesaid shall at all times be vested in the relevant member of the Group.
7.4 You shall not at any time during the Restricted Period, either on your own account or in conjunction with or on behalf of any other person, firm, partnership, company, business or body corporate, in competition with any member of the Group, directly or indirectly, solicit or entice away from any member of the Group any person, firm, partnership, company, business or body corporate who now is, or at any time during or at the date of the termination of your appointment as a Non-Executive Director becomes, a customer or supplier of any member of the Group and with whom you had substantive dealings during the Term.
7.5 You shall not at any time during the Restricted Period, either on your own account or in conjunction with or on behalf of any other person, firm, partnership, company, business or body corporate, in competition with any member of the Group, directly or indirectly, solicit or entice away from any member of the Group or employ or otherwise engage any person who now is, or at any time during or at the date of the termination of the appointment as a Non-Executive Director becomes, an employee or consultant of any member of the Group and with whom you had substantive dealings during the Term.
7.6 While the restrictions contained in this Clause 7 are considered by the parties to be reasonable in all the circumstances, it is recognized that restrictions of the nature in question may fail for technical reasons unforeseen and accordingly it is hereby agreed and declared that if any such restrictions shall be adjudged to be void as going beyond what is reasonable in all the circumstances for the protection of the interests of the Group but would be valid if part of the wordings thereof were deleted or the periods (if any) thereof were reduced or area dealt with thereby were reduced in scope, the said restriction shall apply with such modifications as may be necessary to make it valid and effective.
7.7 Nothing in this Clause 7 prevents any confidential information being disclosed
(i) with the prior written approval of the Company; (ii) to MBK Partners in its capacity as a shareholder of the Company; or (iii) to the extent permitted by applicable law, immediately, and in any event within 24 hours upon your awareness of the requirement to disclose and prior to such disclosure, to the extent legally permissible, notify the Company of such requirement in order to enable the Company to seek an appropriate protective order or other remedy, to take such steps at the Company’s own expense as reasonably requested by the Company to resist or narrow the scope of the disclosure and to comply with the
Company’s reasonable requests as to the terms of any such disclosure. If, failing to obtain an appropriate remedy to prevent such disclosure, you are compelled to disclose such relevant confidential information, you shall only make the minimum disclosure that you are legally compelled to do. In any event, you will not oppose action by the Company to obtain an appropriate remedy to prevent such disclosure or other reliable assurance that the confidential information that are so disclosed be accorded confidential treatment.
7.8 Each undertaking contained in this Clause 7 shall be construed as a separate undertaking, and if one or more of the undertakings is held to be against the public interest or unlawful or in any way an unreasonable restraint of trade, the remaining undertakings shall continue to bind you.
8.1 Each notice, demand or other communication given or made hereunder shall be in writing and delivered or sent by post or airmail or by facsimile transmission to the relevant party at its address or fax number set out below (or such other address or fax numbers as the addressee has by three (3) days’ prior written notice specified to the other party):-
To the Company: CAR Inc. 3F, Lead International Building,
2A Zhonghuan South Road, Wangjing, Xxxxxxxx Xxxx., Xxxxxxx XXX 000000 Telephone Number: +8610-5820 9888
Fax Number: +8610-5820 9666
Attention: Human Resources Department
To you: Xx Xxxxxxx Le Xx Xxxx
Suite 1701, One Exchange Square
0 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxx Xxxx Telephone Number: x000 0000 0000
Fax Number: x000 0000 0000
8.2 Any notice, demand or other communication so addressed to the relevant party may be in English or in Chinese and shall be deemed to have been delivered (a) if given or made by post, three (3) business days after the date of dispatch; (b) if given or made by hand, when delivered at the addresses referred to above; and (c) if given or made by fax, when dispatched subject to receipt by the sender of uninterrupted transmission provided that any fax received after 5:00 p.m. shall be deemed received at 9:00 a.m. on the immediately following business day (being any day (excluding Saturday and Sunday) on which banks are generally open for business in the Hong Kong Special Administrative Region of the People’s Republic of China (“Hong Kong”)).
This letter may be executed in any number of counterparts and by either party on separate counterparts, each of which when so executed and delivered shall
be an original, but all the counterparts together shall constitute one and the same instrument.
10. ENTIRE AGREEMENT
This letter constitutes the entire agreement of the parties about its subject matter and supersedes all previous letters of appointment, agreements, understandings and negotiations on that subject matter.
11. GOVERNING LAW AND JURISDICTION
This letter shall be governed by and construed in accordance with the laws of Hong Kong, and the parties hereto irrevocably submit to the non-exclusive jurisdiction of the courts of Hong Kong for all purposes in connection herewith.
Please confirm your acceptance as a Non-Executive Director as stated herein by signing and returning to us a copy of this letter.
[Signature pages to follow]
For and on behalf of
Yifan SONG Director