|
Transaction Valuation***
|
| |
Amount of Filing Fee****
|
|
|
$32,760,386.40
|
| |
$4,252.30
|
|
| Date: July 6, 2020 | | | | | | | | | | |
|
Square Limited
|
| | By: | | | /s/ Chen Rui | | |||
| | | | | | | Name: | | | Chen Rui | |
| | | | | | | Title: | | | Director | |
|
Square Acquisition Co.
|
| | By: | | | /s/ Chen Rui | | |||
| | | | | | | Name: | | | Chen Rui | |
| | | | | | | Title: | | | Director | |
| Date: July 6, 2020 | | | | | | | | | | |
|
Japan NK Investment K.K.
|
| | By: | | | /s/ Mitsutoshi Nishiyama | | |||
| | | | | | | Name: | | | Mitsutoshi Nishiyama | |
| | | | | | | Title: | | | Representative Director | |
| Date: July 6, 2020 | | | | | | | | | | |
|
IDG-Accel China Capital L.P.
|
| | By: | | | /s/ Chi Sing Ho | | |||
| | | | | | | Name: | | | Chi Sing Ho | |
| | | | | | | Title: | | | Authorized Signatory | |
| Date: July 6, 2020 | | | | | | | | | | |
|
IDG-Accel China Capital Investors L.P.
|
| | By: | | | /s/ Chi Sing Ho | | |||
| | | | | | | Name: | | | Chi Sing Ho | |
| | | | | | | Title: | | | Authorized Signatory | |
| Date: July 6, 2020 | | | | | | | | | | |
|
Jolmo Solar Capital Ltd.
|
| | By: | | | /s/ Duan Xiaoguang | | |||
| | | | | | | Name: | | | Duan Xiaoguang | |
| | | | | | | Title: | | | Authorized Person | |
| Date: July 6, 2020 | | | | | | | | | | |
|
CES Holding Ltd.
|
| | By: | | | /s/ Duan Xiaoguang | | |||
| | | | | | | Name: | | | Duan Xiaoguang | |
| | | | | | | Title: | | | Director | |
| Date: July 6, 2020 | | | | | | | | | | |
|
Jing Kang
|
| | | | | /s/ Jing Kang | |
| Date: July 6, 2020 | | | | | | | | | | |
|
Bin Shi
|
| | | | | /s/ Bin Shi | |
| Date: July 6, 2020 | | | | | | | | | | |
|
Sino-Century HX Investments Limited
|
| | By: | | | /s/ Hao Wu | | |||
| | | | | | | Name: | | | Hao Wu | |
| | | | | | | Title: | | | Director | |
| Date: July 6, 2020 | | | | | | | | | | |
|
Kai Ding
|
| | | | | /s/ Kai Ding | |
| Date: July 6, 2020 | | | | | | | | | | |
|
TCL Transportation Holdings Limited
|
| | By: | | | /s/ Wang Dewei | | |||
| | | | | | | Name: | | | Wang Dewei | |
| | | | | | | Title: | | | Director | |
| Date: July 6, 2020 | | | | | | | | | | |
|
Esteem Venture Investment Limited
|
| | By: | | | /s/ Dong Ruili | | |||
| | | | | | | Name: | | | Dong Ruili | |
| | | | | | | Title: | | | Director | |
| Date: July 6, 2020 | | | | | | | | | | |
| | | | | | | /s/ Nancy Law | | |||
|
Mamaya Investments Ltd
|
| | By: | | | /s/ James Dingle | | |||
| | | | | | | Name: | | |
Nancy Law
James Dingle |
|
| | | | | | | Title: | | |
Senior Managers for HSBC PB Corporate Services 1 Limited,
Corporate Director of Mamaya Investment Ltd. |
|
| Date: July 6, 2020 | | | | | | | | | | |
|
Xanadu Investment Ltd. (H.K.)
|
| | By: | | | /s/ Eugen von Keller | | |||
| | | | | | | Name: | | | Eugen von Keller | |
| | | | | | | Title: | | | Director | |
| Date: July 6, 2020 | | | | | | | | | | |
|
Abdullateef A. AL-Tammar
|
| | | | | /s/ Abdullateef A. AL-Tammar | |
| Date: July 6, 2020 | | | | | | | | | | |
|
Development Holding Company Ltd.
|
| | By: | | | /s/ Bjoern Ludvig Ulfsson Nilsson | | |||
| | | | | | | Name: | | | Bjoern Ludvig Ulfsson Nilsson | |
| | | | | | | Title: | | | Director | |
| Date: July 6, 2020 | | | | | | | | | | |
|
Bjoern Ludvig Ulfsson Nilsson
|
| | | | | /s/ Bjoern Ludvig Ulfsson Nilsson | |
| | | | | 1 | | | |
| | | | | 6 | | | |
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| | | | | 37 | | | |
| | | | | A-1 | | | |
| | | | | B-1 | | | |
| | | | | C-1 | | |
| | |
Trading Price (US$)
|
| |||||||||
| | |
High
|
| |
Low
|
| ||||||
2018 | | | | | | | | | | | | | |
First Quarter
|
| | | | 4.17 | | | | | | 2.05 | | |
Second Quarter
|
| | | | 3.37 | | | | | | 2.40 | | |
Third Quarter
|
| | | | 3.12 | | | | | | 1.15 | | |
Fourth Quarter
|
| | | | 2.02 | | | | | | 1.12 | | |
2019 | | | | | | | | | | | | | |
First Quarter
|
| | | | 3.95 | | | | | | 1.34 | | |
Second Quarter
|
| | | | 1.92 | | | | | | 1.20 | | |
Third Quarter
|
| | | | 1.47 | | | | | | 1.00 | | |
Fourth Quarter
|
| | | | 1.91 | | | | | | 1.02 | | |
2020 | | | | | | | | | | | | | |
First Quarter
|
| | | | 1.99 | | | | | | 1.01 | | |
Second Quarter
|
| | | | 4.75 | | | | | | 1.21 | | |
Third Quarter (through July 2, 2020)
|
| | | | 5.04 | | | | | | 4.51 | | |
| | |
As of December 31,
|
| |||||||||
| | |
2018
|
| |
2019
|
| ||||||
| | |
(audited)
|
| |||||||||
BALANCE SHEET | | | | | | | | | | | | | |
Current Assets
|
| | | | 174,720 | | | | | | 566,762 | | |
Non-Current Assets
|
| | | | 410,947 | | | | | | 348,592 | | |
Current Liabilities
|
| | | | 224,348 | | | | | | 90,108 | | |
Non-current Liabilities
|
| | | | 282,662 | | | | | | 278,183 | | |
Total shareholders’ Equity
|
| | | | 78,207 | | | | | | 37,063 | | |
| | |
For the year ended
December 31, |
| |||||||||
| | |
2018
|
| |
2019
|
| ||||||
| | |
(audited)
|
| |||||||||
STATEMENT OF OPERATIONS | | | | | | | | | | | | | |
Total Net Revenue
|
| | | | 64,669 | | | | | | 48,948 | | |
Gross Profit
|
| | | | 34,407 | | | | | | 27,209 | | |
Profit (loss) from operations
|
| | | | 24,312 | | | | | | (331) | | |
Loss for the year
|
| | | | (22,120) | | | | | | (42,012) | | |
(Loss) profit for the year attributable to owners of the Company
|
| | | | (21,955) | | | | | | (42,061) | | |
(Loss) profit for the year attributable to non-controlling interests
|
| | | | (165) | | | | | | 49 | | |
Loss per share – basic and diluted
|
| | | | (0.05) | | | | | | (0.10) | | |
Weighted average number of ordinary shares outstanding – basic and diluted
|
| | | | 419,546,514 | | | | | | 419,546,514 | | |
Name and Title
|
| |
Present Occupation or Employment, Employment History, Citizenship and Address
|
|
Rui Chen
Director |
| | Mr. Rui Chen is a director of Parent. Mr. Chen’s business address and telephone number are Kotobuki Bldg. 9F, Iwamotocho 3-chome 10-4, Chiyoda-ku, Tokyo 101-0032, Japan and +81-3-5839-2046. Mr. Chen has served as the Representative of Sky Solar Japan Co., Ltd. since 2009. Mr. Chen is a citizen of the People’s Republic of China. | |
Name and Title
|
| |
Present Occupation or Employment, Employment History, Citizenship and Address
|
|
Rui Chen
Director |
| | Mr. Rui Chen is a director of JNKI. Mr. Chen’s business address and telephone number are Kotobuki Bldg. 9F, Iwamotocho 3-chome 10-4, Chiyoda-ku, Tokyo 101-0032, Japan and +81-3-5839-2046. Mr. Chen has served as the Representative of Sky Solar Japan Co., Ltd. since 2009. Mr. Chen is a citizen of the People’s Republic of China.. | |
Name and Title
|
| |
Present Occupation or Employment, Employment History, Citizenship and Address
|
|
Rui Chen
Director |
| | Mr. Rui Chen is a director of JNKI. Mr. Chen’s business address and telephone number are Kotobuki Bldg. 9F, Iwamotocho 3-chome 10-4, Chiyoda-ku, Tokyo 101-0032, Japan and +81-3-5839-2046. Mr. Chen has served as the Representative of Sky Solar Japan Co., Ltd. since 2009. Mr. Chen is a citizen of the People’s Republic of China. Mr. Chen controls PNF, which is a 60% owner of JNKI. | |
Katsuhito Manabe
Shareholder/Control Person |
| | Mr. Katsuhito Manabe is a shareholder of JNKI, and has served as the Representative of Renewable Japan since 2012. Mr. Manabe’s business address and telephone number are Kotobuki Bldg. 9F, Iwamotocho 3-chome 10-4, Chiyoda-ku, Tokyo 101-0032, Japan and +81-3-5839-2046. Mr. Manabe is a citizen of Japan. Mr. Manabe controls RJ, which is a 40% owner of JNKI. | |
Name and Title
|
| |
Present Occupation or Employment, Employment History, Citizenship and Address
|
|
Chi Sing Ho
Director |
| | Mr. Chi Sing Ho has been acting as the CFO of IDG Capital and the director of IDG VC Management Limited for the last five years. Mr. Ho’s business addresses and telephone numbers are c/o IDG Capital Management (HK) Limited, Unit 5505, The Centre, 99 Queen’s Road Central, Hong Kong and c/o IDG Capital Investment Consultancy (Beijing) Co., Ltd., 6th F, Tower A, COFCO Plaza, 8 Jianguomennei Avenue, Beijing, 100005, China and +852-2529-1016 and +86-10-8590-1800, respectively. Mr. Ho is a citizen of Canada. | |
Quan Zhou
Director |
| | Mr. Zhou has been a managing member of the general partner of IDG Technology Venture Investments, L.P. and its successor funds. Mr. Zhou serves as a director of the general partner of each of IDG-Accel China Growth Fund L.P. and IDG-Accel China Capital Fund L.P., and their respective successor funds. He also serves as a director of the general partner of each of IDG China Venture Capital Fund IV L.P. and its successor fund and IDG China Capital Fund III L.P. Mr. Zhou currently serves on the board of directors of CASI Pharmaceuticals, Inc., a NASDAQ-listed company and Yiren Digital Ltd., a NYSE-listed company. Mr. Zhou’s business addresses and telephone numbers are c/o IDG Capital Management (HK) Limited, Unit 5505, The Centre, 99 Queen’s Road Central, Hong Kong and c/o IDG Capital Investment Consultancy (Beijing) Co., Ltd., 6th F, Tower A, COFCO Plaza, 8 Jianguomennei Avenue, Beijing, 100005, China and +852- 2529-1016 and +86-10-8590-1800, respectively. Mr. Zhou is a citizen of the United States of America. | |
Name and Title
|
| |
Present Occupation or Employment, Employment History, Citizenship and Address
|
|
Jiale Dai
Private Investor/Control Person |
| | Mr. Jiale Dai is the sole shareholder of Jolmo and is a self-employed private investor. Mr. Dai’s residential address is Room 703, Building 82, Yitian Village, 1005 Yitian Road, Futian District, Shenzhen, Guangdong Province, China, 518000. Mr. Dai is a citizen of the People’s Republic of China. | |
Xiaoguang Duan
Director |
| | Mr. Xiaoguang Duan is the sole director of Jolmo and also serves as the director of CES. Mr Duan has also served as the president of the board of Jin Yu Mao Wu Investment Management Co., Ltd. since 2009 and as a director on the board of SKYS since May 2011. Mr. Duan’s business address is 14th Floor, building 2, NanDa Softech Science & Technology Innovation Park, 19 QingJiangNan Road, GuLou District, NanJing City, Jiangsu Province, the People’s Republic of China, 210000. Mr. Duan currently serves as the director of CES and has served as the president of the board of Jin Yu Mao Wu Investment Management Co., Ltd. since 2009. Mr. Duan is a citizen of the People’s Republic of China. Mr. Duan is the spouse of Jing Kang. | |
Name and Title
|
| |
Present Occupation or Employment, Employment History, Citizenship and Address
|
|
Jiale Dai
Private Investor/Control Person |
| | Mr. Jiale Dai is the sole shareholder of Jolmo and is a self-employed private investor. Mr. Dai’s residential address is Room 703, Building 82, Yitian Village, 1005 Yitian Road, Futian District, Shenzhen, Guangdong Province, China, 518000. Mr. Dai is a citizen of the People’s Republic of China. | |
Xiaoguang Duan
Director |
| | Mr. Xiaoguang Duan is the sole director of Jolmo and also serves as the director of CES. Mr Duan has also served as the president of the board of Jin Yu Mao Wu Investment Management Co., Ltd. since 2009 and as a director on the board of SKYS since May 2011. Mr. Duan’s business address is 14th Floor, building 2, NanDa Softech Science & Technology Innovation Park, 19 QingJiangNan Road, GuLou District, NanJing City, Jiangsu Province, the People’s Republic of China, 210000. Mr. Duan currently serves as the director of CES and has served as the president of the board of Jin Yu Mao Wu Investment Management Co., Ltd. since 2009. Mr. Duan is a citizen of the People’s Republic of China. Mr. Duan is the spouse of Jing Kang. | |
Name and Title
|
| |
Present Occupation or Employment, Employment History, Citizenship and Address
|
|
Hao Wu
Director/Control Person |
| | Dr. Hao Wu has served as director of SCHI since August 2010. Dr. Wu has also served as chairman of the board of directors of SKYS since June 2017. Dr. Wu’s business address is 90 Elgin Avenue, George Town, Grand Cayman KY1-9005, Cayman Islands. Dr. Wu is a citizen of the People’s Republic of China. | |
Name and Title
|
| |
Present Occupation or Employment, Employment History, Citizenship and Address
|
|
Du Yuanhua
General Manager |
| | Du Yuanhua has served as the general manager of TCL Industries (Hong Kong) Limited since July 2009. Du Yuanhua’s business address is Room 12A, 12/F, Block 11, Discovery Park, Tsuen Wan, N.T. Hong Kong. Du Yuanhua is a citizen of the People’s Republic of China. | |
Wang Dewei
Financial Controller |
| | Wang Dewei has served as the chief financial officer of of TCL Industries (Hong Kong) Limited since April 2019, and prior to that served as the General Manager of the same entity from April 2016 to April 2019. Wang Dewei’s business address is Room 12A, 12/F, Block 11, Discovery Park, Tsuen Wan, N.T. Hong Kong. Wang Dewei is a citizen of the People’s Republic of China. | |
Li Dongsheng
Control Person |
| | Li Dongsheng serves as the Chairman and Chief Executive Officer of TCL Corp. since 1996, and is the controlling person of TCL. Li Dongsheng’s business address is No. C6, TCL International E City, 1001, Zhongshanyuan Road, Nanshan District, Shenzhen, China. Li Dongsheng is a citizen of the People’s Republic of China. | |
Name and Title
|
| |
Present Occupation or Employment, Employment History, Citizenship and Address
|
|
Dong Ruili
Financial Controller |
| | Dong Ruili has served financial controller of TCL Venture Capital since August 2019 and served as auditing director of Taidong Group from June 2014 to July 2019. Dong Ruili’s residential address is Room A420 Phase 1, Zhonghai Kaixuancheng, Huicheng District, Huizhou, Guangdong, China. Dong Ruili is a citizen of the People’s Republic of China. | |
Lei Huang
General Manager |
| | Lei Huang has served as general manager of Wuxi RunChuang Investment Management Corp. since June 2008 and served as investor director of Wuxi Venture Capital Group Corp. Ltd. from June 2005 to June 2008. Lei Huang’s residential address is 78-1102 Yujinwan, Wuxi, China. Lei Huang is a citizen of Canada. | |
Name and Title
|
| |
Present Occupation or Employment, Employment History, Citizenship and Address
|
|
Hamad Tariq Al-Homaizi
Managing Partner |
| | Mr. Hamad Tariq Al-Homaizi has served as managing partner of Mamaya since May 2013. Mr. Al-Homaizi’s business address is PO Box 17919, Khaldiya, Kuwait. Mr. Al- Homaizi is a citizen of Kuwait. | |
Khaledah Kh. Z. Alkhaled
Private Investor |
| | Mrs. Khaledah Kh. Z. Alkhaled is a self-employed private investor. Mrs. Alkhaled’s business address is PO Box 17919, Khaldiya, Kuwait. Mrs. Alkhaled is a citizen of Kuwait. | |
Name and Title
|
| |
Present Occupation or Employment, Employment History, Citizenship and Address
|
|
Eugen von Keller
Director |
| | Mr. Eugen von Keller has served as director of Xanadu since October 2001. Mr. Keller’s business address is 2616, Luk Kwok 72, Gloucester Rd., Wanchai, Hong Kong. Mr. Keller is a citizen of Hong Kong (China). | |
Name and Title
|
| |
Present Occupation or Employment, Employment History, Citizenship and Address
|
|
Bjoern Ludvig Ulfsson Nilsson
Director |
| | Mr. Bjoern Ludvig Ulfsson Nilsson has served as a director of Jade Invest since November 2013. Mr. Nilsson’s address is Skyline Mansions Building 1, Apartment 1902, 200 Dongtai Road, Shanghai, China. Mr. Nilsson is a citizen of Sweden. | |
Per Jonas Lindblad
Director |
| | Mr. Per Jonas Lindblad has served as a director of Jade Invest since November 2013. Mr. Lindblad’s address is 4a Bloomsbury Square, WC1A 2RP, London, UK. Mr. Lindblad is a citizen of Sweden. | |
Name and Title
|
| |
Present Occupation or Employment, Employment History, Citizenship and Address
|
|
Jing Kang
Private Investor |
| | Jing Kang is a self-employed private investor whose principal business address is 14th Floor, building 2, NanDa Softech Science & Technology Innovation Park, 19 QingJiangNan Road, GuLou District, NanJing City, Jiangsu Province, the People’s Republic of China, 210000, and who is the spouse of Mr. Duan. Jing Kang is a citizen of Canada. | |
Bin Shi
Private Investor |
| | Mr. Bin Shi is a self-employed private investor whose principal business address is 14th Floor, building 2, NanDa Softech Science & Technology Innovation Park, 19 QingJiangNan Road, GuLou District, NanJing City, Jiangsu Province, the People’s Republic of China, 210000. Mr. Shi is a citizen of the People’s Republic of China. | |
Abdullateef A. AL-Tammar
Director |
| | Mr. Abdullateef A. AL-Tammar has served as a director of ideality advisory services since December 2009. Mr. AL-Tammar’s principal business address is Qurtobah Block 2 Plot 1171 Street 1 House 98, Kuwait. Mr. AL-Tammar is a citizen of Kuwait. | |
Bjoern Ludvig Ulfsson Nilsson
Director |
| | Mr. Bjoern Ludvig Ulfsson Nilsson has served as a director of Jade Invest since November 2013. Mr. Nilsson’s address is Skyline Mansions Building 1, Apartment 1902, 200 Dongtai Road, Shanghai, China. Mr. Nilsson is a citizen of Sweden. | |
Kai Ding
President |
| | Mr. Kai Ding has served as president of Guanyu Biotech Co., Ltd. since August 2006. Mr. Ding’s principal business address is 229 Shangyi Road, No. 39, Room 302, Shanghai, China. Mr. Ding is a citizen of the People’s Republic of China. | |
| | |
Shares
Beneficially Owned |
| |
Percentage of
Total* |
| |
Sole Voting
Power |
| |
Shared
Voting Power |
| |
Sole
Dispositive Power |
| |
Shared
Dispositive Power |
| ||||||||||||||||||
Japan NK Investment K.K.
|
| | | | 152,107,950 | | | | | | 36.3% | | | | | | 0 | | | | | | 152,107,950 | | | | | | 0 | | | | | | 152,107,950 | | |
PNF Investment Co., Ltd.
|
| | | | 152,107,950 | | | | | | 36.3% | | | | | | 0 | | | | | | 152,107,950 | | | | | | 0 | | | | | | 152,107,950 | | |
Rui Chen
|
| | | | 152,107,950 | | | | | | 36.3% | | | | | | 0 | | | | | | 152,107,950 | | | | | | 0 | | | | | | 152,107,950 | | |
Renewable Japan Co., Ltd.
|
| | | | 152,107,950 | | | | | | 36.3% | | | | | | 0 | | | | | | 152,107,950 | | | | | | 0 | | | | | | 152,107,950 | | |
H&T Corporation
|
| | | | 152,107,950 | | | | | | 36.3% | | | | | | 0 | | | | | | 152,107,950 | | | | | | 0 | | | | | | 152,107,950 | | |
Katsuhito Manabe
|
| | | | 152,107,950 | | | | | | 36.3% | | | | | | 0 | | | | | | 152,107,950 | | | | | | 0 | | | | | | 152,107,950 | | |
IDG-Accel China Capital
L.P.(1) |
| | | | 101,949,906 | | | | | | 24.3% | | | | | | 97,453,914 | | | | | | 4,495,992 | | | | | | 97,453,914 | | | | | | 4,495,992 | | |
IDG-Accel China Capital
Associates L.P.(2) |
| | | | 101,949,906 | | | | | | 24.3% | | | | | | 97,453,914 | | | | | | 4,495,992 | | | | | | 97,453,914 | | | | | | 4,495,992 | | |
IDG-Accel China Capital
Investors L.P.(3) |
| | | | 101,949,906 | | | | | | 24.3% | | | | | | 4,495,992 | | | | | | 97,453,914 | | | | | | 4,495,992 | | | | | | 97,453,914 | | |
IDG-Accel China Capital
GP Associates Ltd.(4) |
| | | | 101,949,906 | | | | | | 24.3% | | | | | | 101,949,906 | | | | | | 0 | | | | | | 101,949,906 | | | | | | 0 | | |
Quan Zhou(5)
|
| | | | 101,949,906 | | | | | | 24.3% | | | | | | 0 | | | | | | 101,949,906 | | | | | | 0 | | | | | | 101,949,906 | | |
Chi Sing Ho(5)
|
| | | | 101,949,906 | | | | | | 24.3% | | | | | | 0 | | | | | | 101,949,906 | | | | | | 0 | | | | | | 101,949,906 | | |
Jolmo Solar Capital Ltd.
|
| | | | 5,400,000 | | | | | | 1.3% | | | | | | 5,400,000 | | | | | | 0 | | | | | | 5,400,000 | | | | | | 0 | | |
CES Holding Ltd.
|
| | | | 8,000,000 | | | | | | 1.9% | | | | | | 8,000,000 | | | | | | 0 | | | | | | 8,000,000 | | | | | | 0 | | |
Jiale Dai(6)
|
| | | | 13,400,000 | | | | | | 3.2% | | | | | | 0 | | | | | | 13,400,000 | | | | | | 0 | | | | | | 13,400,000 | | |
Xiaoguang Duan(7)
|
| | | | 17,200,000 | | | | | | 4.1% | | | | | | 0 | | | | | | 17,200,000 | | | | | | 0 | | | | | | 17,200,000 | | |
Jing Kang
|
| | | | 3,800,000 | | | | | | 0.9% | | | | | | 0 | | | | | | 3,800,000 | | | | | | 0 | | | | | | 3,800,000 | | |
Bin Shi
|
| | | | 14,759,480 | | | | | | 3.5% | | | | | | 14,759,480 | | | | | | 0 | | | | | | 14,759,480 | | | | | | 0 | | |
Sino-Century HX Investments Limited
|
| | | | 4,940,910 | | | | | | 1.2% | | | | | | 4,940,910 | | | | | | 0 | | | | | | 4,940,910 | | | | | | 0 | | |
Kai Ding
|
| | | | 21,109,320 | | | | | | 5.0% | | | | | | 21,109,320 | | | | | | 0 | | | | | | 21,109,320 | | | | | | 0 | | |
TCL Transportation Holdings Limited
|
| | | | 3,866,660 | | | | | | 0.9% | | | | | | 3,866,660 | | | | | | 0 | | | | | | 3,866,660 | | | | | | 0 | | |
Esteem Venture Investment Limited
|
| | | | 1,233,320 | | | | | | 0.3% | | | | | | 1,233,320 | | | | | | 0 | | | | | | 1,233,320 | | | | | | 0 | | |
Mamaya Investments
Ltd |
| | | | 333,340 | | | | | | 0.1% | | | | | | 333,340 | | | | | | 0 | | | | | | 333,340 | | | | | | 0 | | |
Xanadu Investment Ltd. (H.K.)
|
| | | | 1,400,000 | | | | | | 0.3% | | | | | | 1,400,000 | | | | | | 0 | | | | | | 1,400,000 | | | | | | 0 | | |
Abdullateef A. AL-Tammar
|
| | | | 880,100 | | | | | | 0.2% | | | | | | 880,100 | | | | | | 0 | | | | | | 880,100 | | | | | | 0 | | |
Development Holding Company Ltd.
|
| | | | 4,000,000 | | | | | | 1.0% | | | | | | 4,000,000 | | | | | | 0 | | | | | | 4,000,000 | | | | | | 0 | | |
Bjoern Ludvig Ulfsson Nilsson
|
| | | | 494,200 | | | | | | 0.1% | | | | | | 494,200 | | | | | | 0 | | | | | | 494,200 | | | | | | 0 | | |
|
If delivering by mail:
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If delivering by courier:
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|
|
Computershare Trust Company, N.A.
c/o Voluntary Corporate Actions P.O. Box 43011 Providence, Rhode Island 02940-3011 |
| |
Computershare Trust Company, N.A.
c/o Voluntary Corporate Actions 150 Royall Street, Suite V Canton, Massachusetts 02021 |
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|
If delivering by mail:
Computershare Trust Company, N.A. c/o Voluntary Corporate Actions P.O. Box 43011 Providence, Rhode Island 02940-3011 |
| |
If delivering by overnight courier:
Computershare Trust Company, N.A. c/o Voluntary Corporate Actions 150 Royall Street, Suite V Canton, Massachusetts 02021 |
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DESCRIPTION OF SHARES TENDERED
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Name(s) and Address(es) of Registered Owner(s)
(If blank, please fill in exactly as name(s) appear(s) on share certificate(s)) |
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Shares Tendered
(attach additional list if necessary) |
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Certificated Shares**
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Book
entry Shares |
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Certificate
Number(s)* |
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Total
Number of Shares Represented by Certificate(s)* |
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Number of
Shares Represented by Certificate(s) Tendered** |
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Book
Entry Shares Tendered*** |
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Total Shares
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Name of Tendering Institution: |
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DTC Participant Number: |
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Transaction Code Number: |
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Issue:
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☐
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Check and/or |
Name: |
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Address: |
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Issue:
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☐
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Check and/or |
Name: |
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Address: |
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Capacity (full title): |
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Area Code and Telephone Number: |
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Tax Identification or Social Security No.: |
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Name of Firm: |
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Authorized Signature: |
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Area Code and Telephone Number: |
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IF the entity/person on line 1 is
a(n) . . . |
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THEN check the box for . . .
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Corporation
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| | Corporation | |
•
Individual
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| | Individual/sole proprietor or single-member LLC | |
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Sole proprietorship, or
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Single-member limited liability company (LLC) owned by an individual and disregarded for U.S. federal tax purposes.
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•
LLC treated as a partnership for U.S. federal tax purposes,
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| | Limited liability company and enter the appropriate tax classification. (P= Partnership; C= C corporation; or S= S corporation) | |
•
LLC that has filed Form 8832 or 2553 to be taxed as a corporation, or
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•
LLC that is disregarded as an entity separate from its owner but the owner is another LLC that is not disregarded for U.S. federal tax purposes.
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Partnership
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| | Partnership | |
•
Trust/estate
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| | Trust/estate | |
IF the payment is for . . .
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THEN the payment is exempt for . . .
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Interest and dividend payments | | | All exempt payees except for 7 | |
Broker transactions | | | Exempt payees 1 through 4 and 6 through 11 and all C corporations. S corporations must not enter an exempt payee code because they are exempt only for sales of noncovered securities acquired prior to 2012. | |
Barter exchange transactions and patronage dividends | | | Exempt payees 1 through 4 | |
Payments over $600 required to be reported and direct sales over $5,000(1) | | | Generally, exempt payees 1 through 5(2) | |
Payments made in settlement of payment card or third party network transactions | | | Exempt payees 1 through 4 | |
For this type of account:
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Give name and SSN of:
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1.
Individual
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| | The individual | |
2.
Two or more individuals (joint account) other than an account maintained by an FFI
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| | The actual owner of the account or, if combined funds, the first individual on the account(1) | |
3.
Two or more U.S. persons (joint account maintained by an FFI)
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| | Each holder of the account | |
4.
Custodial account of a minor (Uniform Gift to Minors Act)
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| | The minor(2) | |
5.
a. The usual revocable savings trust (grantor is also trustee)
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| | The grantor-trustee(1) | |
b. So-called trust account that is not a legal or valid trust under state law
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| | The actual owner(1) | |
6.
Sole proprietorship or disregarded entity owned by an individual
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| | The owner(3) | |
7.
Grantor trust filing under Optional Form 1099 Filing Method 1 (see Regulations section 1.671-4(b)(2)(i)(A))
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| | The grantor* | |
For this type of account:
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Give name and EIN of:
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8.
Disregarded entity not owned by an individual
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| | The owner | |
9.
A valid trust, estate, or pension trust
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| | Legal entity(4) | |
10.
Corporation or LLC electing corporate status on Form 8832 or Form 2553
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| | The corporation | |
11.
Association, club, religious, charitable, educational, or other tax-exempt organization
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| | The organization | |
12.
Partnership or multi-member LLC
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| | The partnership | |
13.
A broker or registered nominee
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| | The broker or nominee | |
14.
Account with the Department of Agriculture in the name of a public entity (such as a state or local government, school district, or prison) that receives agricultural program payments
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| | The public entity | |
15.
Grantor trust filing under the Form 1041 Filing Method or the Optional Form 1099 Filing Method 2 (see Regulations section 1.671-4(b)(2)(i)(B))
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| | The trust | |
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If delivering by mail:
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If delivering by courier:
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Computershare Trust Company, N.A.
c/o Voluntary Corporate Actions P.O. Box 43011 Providence, Rhode Island 02940-3011 |
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Computershare Trust Company, N.A.
c/o Voluntary Corporate Actions 150 Royall Street, Suite V Canton, Massachusetts 02021 |
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| | | | Tax ID certification on <Certified Y/N> file: | |
| | | | TOTAL AMERICAN DEPOSITARY SHARES (ADSs) 12345678901234 | |
| ADR Certificate Numbers | | | ADSs | | | ADR Certificate Numbers | | | ADSs | |
By Mail:
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By Overnight Delivery:
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For Assistance Please Contact Georgeson LLC
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Computershare Trust Company, N.A. c/o Corporate Actions Voluntary | | | Computershare Trust Company, N.A. | | | US Toll Free Number for ADS Holders: | |
P.O. Box 43011 | | |
150 Royall Street, Suite V
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| | (888) 663-7851 | |
Providence, RI 02940-3011 | | | Canton, MA 02021 | | | +1 (781) 575-2137 | |
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By mail:
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By overnight courier:
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Computershare Trust Company, N.A.
c/o Voluntary Corporate Actions P.O. Box 43011 Providence, Rhode Island 02940-3011 |
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Computershare Trust Company, N.A.
c/o Voluntary Corporate Actions 150 Royall Street, Suite V Canton, Massachusetts 02021 |
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| Name of Firm: | | |
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| Authorized Signature: | | |
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| Name: | | |
(Please Type or Print)
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| Title: | | |
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| Address: | | |
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| Zip Code: | | |
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| Area Code and Telephone Number: | | |
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| Dated: | | | , 2020 | |
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BOX 1
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NOTICE OF GUARANTEED DELIVERY
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| | Please provide the following information: | | |
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Name(s) of Record Holder(s)*:
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Number of ADSs Tendered**:
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ADR Certificate No(s). (if available or applicable):
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Address(es) (including zip code):
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Area Code and Telephone Number(s):
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Signature(s):
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| | Dated: , 2020 | | |
| | ☐ Check if the ADSs that will be tendered are held on the books of CitiBank N.A. and provide: | | |
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Name of Tendering Institution:
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Area Code and Telephone Number:
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Account No.:
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Transaction Code No.:
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Signatures:
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| | Dated: , 2020 | | |
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*
Please print or type the name and address of registered holders of (i) ADRs exactly as it appears on the ADRs or (ii) uncertificated ADSs on the books of CitiBank N.A., exactly as appear on the books of CitiBank N.A.
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**
Unless otherwise indicated, and subject to the terms and conditions of the Offer, a holder will be deemed to have tendered all ADSs owned by such holder.
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BOX 2
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SIGNATURE BY TRUSTEE, EXECUTOR, ADMINISTRATOR, GUARDIAN, ATTORNEY-IN-FACT, OFFICER OR OTHER PERSON ACTING IN A FIDUCIARY OR REPRESENTATIVE CAPACITY
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| | The signatures on this Notice of Guaranteed Delivery must correspond to the exact name(s) of the registered holder(s) of (i) ADRs as such name(s) appears on the ADRs or (ii) uncertificated ADSs on the books of CitiBank N.A. exactly as such name(s) appear on the books of CitiBank N.A.. | | |
| | If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer or other person acting in a fiduciary or representative capacity, such person must provide the following: | | |
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Name(s) (please type or print):
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Capacity (please type or print):
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Address(es) (please type or print):
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Signatures:
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| | Dated: , 2020 | | |
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BOX 3
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GUARANTEE
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(Not to be used for signature guarantee for an ADS Letter of Transmittal.)
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| | The undersigned, a member firm in good standing of a national securities exchange registered with the Securities and Exchange Commission or of the National Association of Securities Dealers, Inc., or a commercial bank or trust company having an office or correspondent in the U.S. (each, an “Eligible Institution”), hereby guarantees to deliver within two (2) Nasdaq (“Nasdaq”) trading days after the date of execution of the Notice of Guaranteed Delivery (but in any event no later than two (2) Nasdaq trading days following the Initial Expiration Date) to the Tender Agent a properly completed and duly executed ADS Letter of Transmittal, the ADRs for all physically tendered ADSs, in proper form for transfer, or a book-entry confirmation of tender of such ADSs through the DTC system, including delivery to the Tender Agent of the Agent’s Message instead of an ADS Letter of Transmittal, as applicable, with any required signature guarantees and any other documents required by the ADS Letter of Transmittal. | | |
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Name of Firm:
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Address (with zip code):
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Area Code and Telephone No.:
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Authorized Signature:
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Name (please type or print):
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Title:
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| | Dated: , 2020 | | |
| Number of ADSs to be Tendered: | | |
SIGN HERE
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| ADSs* | | |
Signature(s)
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| Account Number: | | |
Name(s)
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| Dated , 2020 | | |
Address(es)
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*
Unless otherwise indicated, it will be assumed that all ADSs held for the undersigned’s account are to be tendered.
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Area Code and Telephone Number
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Taxpayer Identification or Social Security Number
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| | Name and legal form: | | | | | | |
| | Registered office: | | | | | | |
| | Country: | | | | | | |
| | Validly represented by: | | | |
1. (name, surname, domicile and capacity)
2. (name, surname, domicile and capacity)
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| |
| | Surname: | | | | | | |
| | Name: | | | | | | |
| | Domicile: | | | | | | |
| | Nationality: | | | | | | |
| | Surname: | | | | | | |
| | Passport number: | | | | | | |
| The Shareholder | | | Other financial intermediary | |
|
(signature)
(name, first name) |
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(signature)
(financial intermediary) |
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(signature)
(name, first name) |
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Exhibit (b)(1)
Debt Commitment Letter
Mr. Chen Rui
Square Limited
At the offices of Walkers Corporate Limited
Cayman Corporate Centre, 27 Hospital Road
George Town, Grand Cayman KY1-9008, Cayman Islands
July 5th, 2020
Dear Mr. Chen Rui:
You have advised Daiwa Energy & Infrastructure Co. Ltd. (“we,” “us” or “DEI”) that you intend to, through Square Acquisition Co. (“Merger Co.”), a wholly-owned subsidiary of you organized and existing under the laws of the Cayman Islands, acquire through a two-step procedure including a tender offer (the “Offer”) and a merger (collectively, the “Transaction”) all of the outstanding ordinary shares (including those shares represented by ADSs) of Sky Solar Holdings, Ltd (the “Company” or “SSH”), a company organized and existing under the laws of the Cayman Islands and the indirect parent of Sky Solar Japan Kabushiki Kaisha (“SSJ”), a limited company organized under the laws of Japan, that are not currently owned by (i) each of you and Merger Co. (together, the “Offeror Group”) or any of (ii) Japan NK Investment K.K., a limited company organized under the laws of Japan, IDG-Accel China Capital L.P., a limited partnership organized under the laws of the Cayman Islands, IDG-Accel China Capital Investors L.P., a limited partnership organized under the laws of the Cayman Islands, Jolmo Solar Capital Ltd., a limited company organized under the laws of the British Virgin Islands, CES Holding Ltd., a limited company organized under the laws of Hong Kong, Jing Kang, a natural person and citizen of Canada, Bin Shi, a natural person and citizen of the People’s Republic of China, Sino-Century HX Investments Limited, an exempted company with limited liability organized under the laws of the Cayman Islands and Kai Ding, a natural person and citizen of the People’s Republic of China (collectively, the “Consortium Members”). In connection with the Transaction, you have requested us to, conditional upon and immediately following the successful consummation of the Offer (among other things) in accordance with its terms and conditions, provide a term loan facility (the “Facility”) to SSJ in an aggregate principal amount of JPY4,300,000,000, all of which will be used by the Offeror Group to fund the Transaction and related expenses.
1
DEI is pleased to advise you of its commitment to make available the Facility for SSJ, in an aggregate principal amount of JPY4,300,000,000, described in the Term Sheet annexed hereto and incorporated herein by reference (the “Term Sheet”) (all terms not defined herein shall have the meanings ascribed to them in the Term Sheet), upon the terms and subject to the conditions set forth or referred to in this commitment letter (this “Commitment Letter”) and in the Term Sheet.
DEI’s commitment hereunder is subject to (a) there not occurring or becoming known to us any material adverse condition or material adverse change in or affecting the financial condition of the Offeror Group, taken as a whole, (b) our not becoming aware after the date hereof of any information or other matter materially affecting the Offeror Group, the secured assets pledged as collateral for the Facility or the Transaction which is inconsistent in a material and adverse manner with any such information or other matter disclosed to us prior to the date hereof, (c) there not having occurred a material disruption of or material adverse change in financial, banking or capital market conditions that, in our reasonable judgment, could materially impair the extension of credit by DEI, (d) the negotiation, execution and delivery on or before August 31th, 2020 of definitive loan documentation consistent with the terms set forth in the Term Sheet, and (e) the other conditions set forth or referred to in the Term Sheet.
You agree to indemnify and hold harmless, and to make all members of the Offeror Group indemnify and hold harmless, DEI and its affiliates and officers, directors, employees, advisors, and agents (each, an “indemnified person”) from and against any and all losses, claims, damages and liabilities to which any such indemnified person may become subject arising out of or in connection with this Commitment Letter, the Facility, the use of the proceeds thereof or any related transaction or any claim, litigation, investigation or proceeding relating to any of the foregoing, regardless of whether any indemnified person is a party thereto, and to reimburse each indemnified person upon demand for any legal or other expenses incurred in connection with investigating or defending any of the foregoing, provided that the foregoing indemnity will not, as to any indemnified person, apply to losses, claims, damages, liabilities or related expenses to the extent they are found by a final, non-appealable judgment of a court to arise from the willful misconduct or gross negligence of such indemnified person. No indemnified person shall be liable for any damages arising from the use by others of information provided to DEI by the Offeror Group or other materials obtained through electronic, telecommunications or other information transmission systems or for any special, indirect, consequential or punitive damages in connection with the Facility or in connection with its activities related to the Facility.
2
This Commitment Letter shall not be assignable by you without the prior written consent of DEI (and any purported assignment without such consent shall be null and void). This Commitment Letter is intended to be solely for the benefit of the parties hereto and is not intended to confer any benefits upon, or create any rights in favor of, any person other than the parties hereto. This Commitment Letter may not be amended or waived except by an instrument in writing signed by you and DEI. This Commitment Letter may be executed in any number of counterparts, each of which shall be an original, and all of which, when taken together, shall constitute one agreement. Delivery of an executed signature page of this Commitment Letter by facsimile or other electronic transmission shall be effective as delivery of a manually executed counterpart hereof. This Commitment Letter is the only agreement that has been entered into among us with respect to the Facility and sets forth the entire understanding of the parties with respect thereto.
This Commitment Letter is governed by the laws of Japan. Any dispute arising in connection with this Commitment Letter shall be submitted to the exclusive jurisdiction of the Tokyo District Court as the court of first instance.
This Commitment Letter is delivered to you on the understanding that neither this Commitment Letter, the Term Sheet nor any of their terms or substance shall be disclosed, directly or indirectly (except as required by law, a court of competent jurisdiction, a regulatory body or international stock exchange), to any other person except to the other members of the Offeror Group and the Consortium Members and their and your officers, agents and advisors who are directly involved in the consideration of this matter and (if applicable) the special committee, directors, and officers of the Company, provided that the foregoing restrictions shall cease to apply after this Commitment Letter has been accepted by you.
You acknowledge that DEI and its affiliates may be providing debt financing, equity capital or other services (including financial advisory services) to other companies in respect of which you may have conflicting interests regarding the transactions described herein and otherwise. DEI will not use confidential information obtained from you by virtue of the transactions contemplated by this Commitment Letter or its other relationships with you in connection with the performance by DEI of services for other companies, and DEI will not furnish any such information to other companies. You also acknowledge that DEI has no obligation to use in connection with the transactions contemplated by this Commitment Letter, or to furnish to you, confidential information obtained from other companies.
3
The indemnification and confidentiality provisions contained herein shall remain in full force and effect regardless of whether definitive financing documentation shall be executed and delivered and notwithstanding the termination or expiration of this Commitment Letter or DEI’s commitment hereunder.
If the foregoing correctly sets forth our agreement, please indicate your acceptance of the terms hereof and of the Term Sheet by returning to us an executed counterpart hereof.
[SIGNATURE PAGE TO FOLLOW]
4
Daiwa Energy & Infrastructure Co. Ltd. is pleased to have been given the opportunity to assist you in connection with this important financing.
Very truly yours, | |
Daiwa Energy & Infrastructure Co. Ltd. | |
/s/ Morimasa Matsuda |
|
Name: Morimasa Matsuda | |
Title: President, Representative Director |
Accepted and agreed to as of July 5th, 2020 | |
/s/ Chen Rui |
|
Chen Rui, on behalf of Square Limited |
5
Exhibit (d)(1)
AMENDED & RESTATED CONSORTIUM AGREEMENT
THIS AMENDED & RESTATED CONSORTIUM AGREEMENT (the “Agreement”) is made as of July 6, 2020, by and among Japan NK Investment K.K., a joint stock company organized under the laws of Japan (“JNKI”), IDG-Accel China Capital L.P., a limited partnership organized under the laws of the Cayman Islands (“IDG CC”), IDG-Accel China Capital Investors L.P., a limited partnership organized under the laws of the Cayman Islands (“IDG CCI”, and together with IDG CC, the “IDG Members”), Jolmo Solar Capital Ltd., a limited company organized under the laws of the British Virgin Islands (“Jolmo”), CES Holding Ltd., a limited company organized under the laws of Hong Kong (“CES”), Jing Kang, a natural person and citizen of Canada, Bin Shi, a natural person and citizen of the People’s Republic of China, Sino-Century HX Investments Limited, an exempted company with limited liability organized under the laws of the Cayman Islands (“SCHI”), Kai Ding, a natural person and citizen of the People’s Republic of China, TCL Transportation Holdings Limited, a limited company organized under the laws of the British Virgin Islands (“TCL”), Esteem Venture Investment Limited, a limited company organized under the laws of the British Virgin Islands (“Esteem”), Mamaya Investments Ltd, a limited company organized under the laws of the British Virgin Islands (“Mamaya”), Xanadu Investment Ltd. (HK), a limited company organized under the laws of Hong Kong (“Xanadu”), Abdullateef A. AL-Tammar, a natural person and citizen of Kuwait, Development Holding Company Ltd., an exempted company with limited liability organized under the laws of the Cayman Islands (“DHCL”), and Bjoern Ludvig Ulfsson Nilsson, a natural person and citizen of Sweden. Each of JNKI, the IDG Members, Jolmo, CES, Jing Kang, Bin Shi, SCHI, Kai Ding, TCL, Esteem, Mamaya, Xanadu, Abdullateef A. AL-Tammar, DHCL and Bjoern Ludvig Ulfsson Nilsson is referred to herein as a “Party” and collectively as the “Parties.” Capitalized terms used but not defined herein shall have the meanings given to them in that certain Consortium Agreement, dated May 25, 2020, by and among the Parties (the “Original Agreement”).
All defined terms used but not defined in the first place they appear in the Agreement are defined under Article XI hereof.
WHEREAS, the Parties entered into the Original Agreement in order to form a consortium (the “Consortium”) to undertake an acquisition transaction (the “Transaction”) to acquire Sky Solar Holdings, Ltd. (the “Target”), an exempted company with limited liability incorporated under the laws of the Cayman Islands and listed on the Nasdaq Capital Market (“Nasdaq”), pursuant to which the Target would be delisted from Nasdaq and deregistered under the United States Securities Exchange Act of 1934, as amended (the “Exchange Act”);
WHEREAS, as part of the Transaction, the Parties proposed to utilize a newly formed exempted company with limited liability incorporated under the laws of the Cayman Islands (“Holdco”), and to cause Holdco to incorporate a direct or indirect wholly-owned subsidiary (“Merger Sub”) under the laws of the Cayman Islands;
WHEREAS, the Parties now intend that (a) Merger Sub will launch a tender offer (the “Offer”) to acquire all issued and outstanding Target Ordinary Shares, other than the Rollover Shares (as defined below), at a price of $0.30 in cash per Target Ordinary Share, or $6.00 in cash per ADS, net to the seller in cash, without interest, less any applicable withholding taxes (the “Offer Price”), (b) as soon as practicable after consummation of the Offer in accordance with its terms and conditions, Merger Sub shall merge with and into the Target (the “Merger”), with each outstanding Target Ordinary Share, other than the Rollover Shares, cancelled in consideration for the right to receive the Offer Price, (c) upon the Closing, the Target shall be the surviving company of the Merger (the “Surviving Company”) and a direct wholly-owned subsidiary of Holdco, and (d) at the Closing, certain Target Ordinary Shares held by the Parties or their respective affiliated investment vehicles, in each case as set forth in Schedule A (collectively, the “Rollover Shares”) will be surrendered and cancelled for no consideration, and the Parties will be issued shares (or will have previously been issued shares) in Holdco (subject to any exceptions to be agreed upon among the Parties);
WHEREAS, in accordance with the terms of this Agreement, the Parties will cooperate and participate as necessary to consummate the Transaction.
NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual agreements and covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
Article
I
Holdco Ownership; Additional consortium Members
Section 1.01 Holdco Ownership and Arrangements.
(a) Prior to the commencement of the Offer, the Parties shall cause Holdco to incorporate Merger Sub under the laws of the Cayman Islands.
(b) Subsequent to the commencement of the Offer and prior to the successful consummation of the Offer in accordance with its terms (the “Offer Consummation”), the Parties shall negotiate in good faith and use reasonable best efforts to (i) enter into a shareholders’ agreement of Holdco that will take effect at the Offer Consummation, which shall include, among others, the terms and conditions set forth on Appendix A (the “Shareholders’ Agreement”); and (ii) agree upon the terms of the amended and restated memorandum and articles of association of Holdco and the memorandum and articles of association of Merger Sub. Unless otherwise agreed, the Parties agree that the memorandum and articles of association of Merger Sub shall become the memorandum and articles of association of the Surviving Company at the Closing.
(c) Concurrently with the execution of this Agreement, each Party shall enter into a rollover agreement in customary form pursuant to which such Party agrees that certain Target Ordinary Shares owned by it or its affiliated investment vehicles (if any) shall be cancelled for no consideration, in exchange for newly issued ordinary shares of Holdco. For the avoidance of doubt, each party shall not be obligated to provide any additional equity contribution in cash or otherwise in addition to the rollover of all Target Ordinary Shares owned by it or its affiliated investment vehicles (if any).
(d) The relative ownership of Holdco by the Parties shall be based on their relative capital contributions (which, for the avoidance of doubt, shall include the respective Parties’ Rollover Shares) to Holdco, with the Rollover Shares being valued at the Offer Price, except as otherwise agreed to by all of the Parties in writing.
- 2 -
Section 1.02 Additional Consortium Members. JNKI, IDG and Jolmo may agree to admit one or more additional members (the “Additional Members”) of the Consortium which will provide equity capital and/or debt financing to the Consortium for the consummation of the Transaction. Any additional member admitted to the Consortium shall execute an adherence agreement to this Agreement in the form attached hereto as Schedule B (the “Adherence Agreement”) and, upon its execution of the Adherence Agreement, such additional member shall become an Additional Member for the purposes of this Agreement.
Article
II
Participation in Transaction; Advisors; Approvals
Section 2.01 Transaction Process. The Parties shall cooperate in good faith and take all steps necessary to consummate the Offer and the Merger as soon as practicable. In order to facilitate the foregoing, the Parties agree that JNKI shall be primarily responsible for communication with the Target and the Target’s legal and financial advisors regarding the Transaction and shall (i) keep each of the IDG Members, Jolmo, SCHI and the other Parties reasonably updated on the progress and any outcomes of discussions (if any) with the Target and (ii) obtain the consent from each of the IDG Members and Jolmo on any change to the material terms of the Transaction, including but not limited to the Offer Price, the duration of and any extension(s) of the Offer period (subject, in each case, to the requirements of applicable law and securities regulations), the Offer conditions and any waivers thereof and the treatment of Securities.
Section 2.02 Negotiation with Financing Sources. The Parties agree that documentation of the debt financing with respect to the Transaction (including any contemplated post-Transaction refinancing) shall be in a form reasonably satisfactory to JNKI, the IDG Members and Jolmo, each of whom shall consult with each other in good faith. The Parties shall reasonably update one another (including, for clarity, not only JNKI, the IDG Members and Jolmo but also SCHI and the other Parties) on the progress and outcomes of any negotiation with potential debt financing sources, and the consent of each of JNKI, the IDG Members and Jolmo shall be required with respect to the material terms of any debt financing entered into in connection with the Transaction, including but not limited to applicable interest rate, term, collateral, events of default, restrictive covenants and prepayment terms.
Section 2.03 Information Sharing and Roles. Each Party shall cooperate in good faith in connection with the Transaction, including by (a) complying with any information delivery or other requirements entered into by Holdco, a Party or an Affiliate of a Party, (b) participating in meetings and negotiations with potential debt financing sources (if requested by JNKI), (c) sharing all information reasonably necessary to evaluate the Target, including technical, operational, legal, accounting and financial materials and relevant consulting reports and studies, (d) providing each other or Holdco with all information reasonably required concerning such Party or any other matter relating to such Party in connection with the Transaction and any other information a Party may reasonably require in respect of any other Party and its Affiliates for inclusion in the Documentation, (e) providing timely responses to requests by another Party for information, (f) applying the level of resources and expertise that such Party reasonably considers to be necessary and appropriate to meet its obligations under this Agreement, and (g) consulting with each other and otherwise cooperating in good faith to mutually agree upon all public statements or communications regarding the Parties’ intentions with respect to the Target, any issuance of which shall be subject to Section 7.01. Unless the Parties otherwise agree, none of the Parties shall commission a report, opinion or appraisal (within the meaning of Item 1015 of Regulation M-A of the Exchange Act) from any third party. The Parties agree and confirm that none of the Parties shall provide any information in breach of any of its obligations or fiduciary duties to the Target.
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Section 2.04 Appointment of Advisors. The retention of any joint Advisors, and the scope and other terms of such Advisors’ engagement to Holdco and/or the Parties in connection with the Transaction, shall be satisfactory to each Party. For the avoidance of doubt, no such joint advisors have been retained as of the date hereof.
Section 2.05 Exchange Act Reporting. During the term of this Agreement, each Party shall coordinate with respect to acquisitions or dispositions of beneficial ownership of securities in the Target in order to facilitate each Party’s compliance with Schedule 13D under the Exchange Act.
Article
III
Transaction Costs
Section 3.01 Expenses and Fee Sharing.
(a) Upon consummation of the Transaction, the Surviving Company shall reimburse the Parties for, or pay on behalf of the Parties, as the case may be, all of their out-of-pocket costs and expenses incurred in connection with the Transaction, including, without limitation, the costs and expenses associated with (i) the negotiation, delivery and execution of the Documentation, (ii) any actions taken in accordance with the terms of the Documentation, including any regulatory filings made, and (iii) the retention of Advisors by the Parties or the Consortium (unless otherwise agreed to in writing by the Parties).
(b) Subject to the provisions of Section 4.01, if the Transaction is not consummated or this Agreement is terminated prior to the Closing of the Transaction (and Section 3.01(c) below does not apply), the Parties agree to share (allocated among the Parties in proportion to their committed equity contribution) the out-of-pocket costs and expenses incurred by or on behalf of the Consortium in connection with the Transaction, including any fees, expenses and disbursements payable to Advisors retained for or on behalf of the Consortium or the out-of-pocket costs and expenses incurred in connection with any due diligence investigation conducted by the Parties with respect to the Target, including any fees, expenses and disbursements payable to Advisors retained for such purposes.
(c) If the Transaction is not consummated due to the unilateral breach of this Agreement by one or more Parties, then the breaching Party or Parties shall reimburse any non-breaching Party or Parties for all of its or their out-of-pocket costs and expenses incurred in connection with this Transaction, including any fees, expenses and disbursements of (i) Advisors retained by the Parties and (ii) any due diligence advisors engaged by the Consortium in connection with the Transaction, if any, without prejudice to any rights and remedies otherwise available to such non-breaching Party.
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Article IV
Limitation of Liability
Section 4.01 Limitation of Liability. The obligations of each Party under this Agreement are several (and not joint or joint and several) and, except as set forth in Section 3.01(a) and Section 3.01(c), each Party’s obligation for fees and costs pursuant to Article III is capped at such Party’s Respective Proportion. For the avoidance of doubt, without limiting Section 3.01(c), if a Claim has arisen as a result of fraud, willful misconduct or breach of the Agreement by any one or more Parties, then such Party or Parties shall be solely responsible for such claim and any indemnity, loss or liability in connection therewith.
Article
V
Exclusivity
Section 5.01 Exclusivity Period. During the Exclusivity Period, each Party:
(a) shall and shall cause its respective Affiliates and Representatives to, work exclusively with the other Parties to implement the Transaction, including to (i) evaluate the Target; (ii) formulate any amendments to the terms of the Transaction, if applicable; (iii) conduct negotiations, prepare and finalize the Documentation in the forms to be agreed by the Parties and (iv) vote, or cause to be voted, at every shareholder meeting (whether by written consent or otherwise) all Securities against any Competing Proposal or matter that would facilitate a Competing Proposal and in favor of the Transaction;
(b) shall not, without the written consent of the other Parties, directly or indirectly, either alone or with or through any of its Affiliates or Representatives: (i) make a Competing Proposal or join with, or invite, any other person to be involved in the making of any Competing Proposal (including through any rollover investment therein); (ii) provide any information to any third party with a view to the third party or any other person pursuing or considering to pursue a Competing Proposal; (iii) finance or offer to finance any Competing Proposal, including by offering any equity or debt finance, or contribution of Securities or provision of a voting agreement, in support of any Competing Proposal; (iv) enter into any written or oral agreement, arrangement or understanding (whether legally binding or not) regarding, or do, anything which is directly inconsistent with the Transaction as contemplated under this Agreement; (v) acquire (other than pursuant to share incentive plans of the Target) or dispose of any Securities, or directly or indirectly (A) sell, offer to sell, give, pledge, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of, or enter into any agreement, arrangement or understanding to sell or otherwise transfer or dispose of, an interest in any Securities (“Transfer”) or permit the Transfer by any of their respective Affiliates of an interest in any Securities, in each case, except as expressly contemplated under this Agreement and the Documentation, (B) enter into any contract, option or other arrangement or understanding with respect to a Transfer or limitation on voting rights of any of the Securities, or any right, title or interest thereto or therein, or (C) deposit any Securities into a voting trust or grant any proxies or enter into a voting agreement, power of attorney or voting trust with respect to any Securities, (vi) take any action that would have the effect of preventing, disabling or delaying the Party from performing its obligations under this Agreement; or (vii) solicit, encourage, facilitate, induce or enter into any negotiation, discussion, agreement or understanding (whether or not in writing) with any other person regarding the matters described in Section 5.01(a) or (b);
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(c) shall immediately cease and terminate, and cause to be ceased and terminated, all existing activities, discussions, conversations, negotiations and other communications (whether conducted by it or any of its Affiliates or Representatives) with all persons conducted heretofore with respect to a Competing Proposal; and
(d) shall promptly notify the other Parties if it, its Affiliates or any of its Representatives receives any approach or communication with respect to any Competing Proposal, promptly disclose to the other Parties the identity of any other persons involved and the nature and content of such approach or communication and promptly provide copies of any such written Competing Proposal.
Article
VI
Termination
Section 6.01 Failure to Agree; Mutual Termination.
(a) If the Parties, after good faith endeavors to pursue the Transaction in compliance with the other sections of this Agreement, are unable to agree by the expiration of the Exclusivity Period as between themselves upon the material terms of the Transaction then (i) a Party may cease its participation in the Transaction upon prior written notice to the other Parties; and (ii) this Agreement shall terminate with respect to such withdrawing Party thereafter, following which the provisions of Section 6.02(a) will apply.
(b) This Agreement shall terminate at any time upon the mutual written agreement of JNKI, the IDG Members and Jolmo.
(c) This Agreement shall terminate without any further action on the part of any Party on the date the Transaction is consummated.
(d) This Agreement shall terminate without any further action on the part of any Party if the Transaction is not approved by any governmental entity required to approve or clear the Transaction, or the Transaction is otherwise deemed invalid, illegal or incapable of being enforced in any competent jurisdiction applicable to the Parties.
Section 6.02 Effect of Termination.
(a) Upon termination of this Agreement with respect to a Party pursuant to Section 6.01(a), Article III (Transaction Costs), Article IV (Limitation of Liability), Article V (Exclusivity), Article VI (Termination), Section 7.02 (Confidentiality), Article VIII (Notices) and Article X (Miscellaneous) shall continue to bind such Party and such Party shall be liable under Article III for its pro rata portion of any expenses for which it is obligated under Section 3.01(b) incurred prior to the termination of this Agreement with respect to such Party. The Parties shall otherwise not be liable to each other in relation to this Agreement, other than in respect of a breach of this Agreement occurring prior to termination.
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(b) Upon termination of this Agreement with respect to a Party pursuant to Section 6.01(b), Section 6.01(c) or Section 6.01(d), Article III (Transaction Costs), Article IV (Limitation of Liability), Article VI (Termination), Section 7.02 (Confidentiality), Article VIII (Notices) and Article X (Miscellaneous) shall continue to bind such Party and such Party shall be liable under Article III for its pro rata portion of any expenses for which it is obligated under Section 3.01(b) incurred prior to the termination of this Agreement with respect to such Party. The Parties shall otherwise not be liable to each other in relation to this Agreement, other than in respect of a breach of this Agreement occurring prior to termination.
Article
VII
Announcements and Confidentiality
Section 7.01 Announcements. No announcements regarding the subject matter of this Agreement shall be issued by any Party without the prior written consent of the other Parties, which consent shall not be unreasonably withheld, conditioned or delayed, except to the extent that any such announcements are required by law, a court of competent jurisdiction, a regulatory body or international stock exchange (but only to the extent practicable and lawful after the form and terms of that disclosure have been notified to the other Parties and the other Parties have had a reasonable opportunity to comment on the form and terms of disclosure, in each case, to the extent reasonably practicable).
Section 7.02 Confidentiality.
(a) Except as permitted under Section 7.03, each Party shall not, and shall direct its Representatives not to, without the prior written consent of the other Parties, disclose any Confidential Information received by it (the “Recipient”) from any other Party (the “Discloser”). Each Party shall not, and shall direct its Representatives not to, use any Confidential Information for any purpose other than for the purposes of this Agreement or the Transaction.
(b) Subject to Section 7.02(c), the Recipient shall safeguard and return to the Discloser any Confidential Information which falls within paragraph (a) of the definition of Confidential Information, on demand, or in the case of electronic data (other than any electronic data stored on the back-up tapes of the Recipient’s hardware), destroy at the option of the Recipient, any Confidential Information contained in any material in its or its Representatives’ possession or control.
(c) Each Party may retain in a secure archive a copy of the Confidential Information referred to in Section 7.02(b) if the Confidential Information is required to be retained by such Party for regulatory purposes or reasonably required in connection with a bona fide document retention policy.
(d) Each Party acknowledges that, in relation to Confidential Information received from another Party, the obligations contained in Section 7.02(a) shall continue to apply for a period of twenty-four (24) months following termination of this Agreement unless otherwise agreed to in writing by such other Party.
Section 7.03 Permitted Disclosures. A Party may disclose Confidential Information (a) to those of its Affiliates and Representatives as such Party reasonably deems necessary to give effect to, perform its obligations under or enforce this Agreement or evaluate, negotiate and implement the Transaction, but only on a confidential basis; (b) to potential financing sources or investors, but only on a confidential basis, or (c) if required by law or a court of competent jurisdiction, the SEC or any other regulatory body or stock exchange having jurisdiction over a Party or pursuant to whose rules and regulations such disclosure is required to be made, but only after the form and terms of such disclosure have been notified to the other Parties and the other Parties have had a reasonable opportunity to comment thereon, in each case to the extent reasonably practicable.
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Article
VIII
Notices
Section 8.01 Notices. Any notice, request, instruction or other document to be given hereunder by any Party to another Party shall be in writing and delivered personally or sent by registered or certified mail, postage prepaid, by facsimile, overnight courier or electronic mail as provided in Annex B hereto, or to such other address or facsimile number or email address as such Party may hereafter specify for the purpose by notice to the other Party hereto. All such notices, requests and other communications, (a) if hand delivered, shall be deemed received on the date of receipt by the recipient thereof if received prior to 6:00 p.m. on a Business Day in the place of receipt; otherwise, any such notice, request or communication shall be deemed to have been received on the next succeeding Business Day in the place of receipt; (b) if posted by mail, it shall be treated as delivered five (5) days after posting; (c) if transmitted by facsimile or email, shall be deemed received upon confirmation of delivery.
Article
IX
Representations and Warranties
Section 9.01 Representations and Warranties. Each Party hereby represents and warrants, on behalf of such Party only, to the other Parties that (a) it is duly organized and validly existing under laws of the jurisdiction of its incorporation or formation; (b) it has the requisite power and authority to execute, deliver and perform this Agreement; (c) the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary action on the part of such Party and no additional proceedings are necessary to approve this Agreement; (d) this Agreement has been duly executed and delivered by it and constitutes a valid and binding agreement of such Party enforceable against it in accordance with the terms hereof; (e) its execution, delivery and performance (including the provision and exchange of information) of this Agreement will not (i) conflict with, require a consent, waiver or approval under, or result in a breach of or default under, any of the terms of any material contract or agreement to which such Party is a party or by which such Party is bound, or any office such Party holds, (ii) violate any order, writ, injunction, decree or statute, or any rule or regulation, applicable to such Party or any of its properties and assets, or (iii) result in the creation of, or impose any obligation on such Party to create, any lien, charge or other encumbrance of any nature whatsoever upon such Party’s properties or assets; and (f) no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the Transaction based upon arrangements made by or on behalf of such Party.
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Section 9.02 Target Ordinary Shares. Each Party further represents and warrants (on behalf of such Party only) to the other Parties that, as of the date of this Agreement, (a) unless otherwise disclosed in Schedule A, such Party or its Affiliates hold (i) of record the number of outstanding Target Ordinary Shares set forth under the heading “Shares Held of Record” next to its or its Affiliate’s name on Schedule A hereto, and (ii) the other Securities set forth under the heading “Other Securities” next to its or its Affiliate’s name on Schedule A hereto, in each case free and clear of any encumbrances or restrictions other than those encumbrances or restrictions disclosed on Schedule A; (b) unless otherwise disclosed in Schedule A, such Party has the sole right to control the voting and disposition of the Target Ordinary Shares (if any) and any other Securities (if any) held by such Party or its Affiliates; and (c) such Party does not own, directly or indirectly, any Target Ordinary Shares or other Securities other than as set forth on Schedule A hereto. For purposes of this Section 9.02, “owns” means the relevant Party (x) is the record holder of such security or (y) is the “beneficial owner” (within the meaning of Rule 13d-3 under the Exchange Act) of such security.
Section 9.03 Separate Representations and Warranties. Each representation and warranty set forth in Section 9.01 and Section 9.02 is a separate representation and warranty. The interpretation of any representation and warranty may not be restricted by reference to or inference from any other representation and warranty.
Section 9.04 Reliance. Each Party acknowledges that the other Parties have entered into this Agreement on the basis of and in reliance upon (among other things) the representations and warranties in Section 9.01 and Section 9.02 and have been induced by it to enter into this Agreement.
Article
X
Miscellaneous
Section 10.01 Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes any previous oral or written agreements or arrangements among them or between any of them relating to its subject matter.
Section 10.02 Further Assurances. Each Party shall use commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper or advisable to carry out the intent and purposes of this Agreement.
Section 10.03 Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, it shall be adjusted rather than voided, if possible, in order to achieve the intent of the Parties to the maximum extent possible. In any event, the invalidity or unenforceability of any provision of this Agreement in any jurisdiction shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of this Agreement, including that provision, in any other jurisdiction.
Section 10.04 Amendments; Waivers. Neither this Agreement nor any term hereof may be amended or otherwise modified other than by an instrument in writing signed by the Parties. No provision of this Agreement may be waived, discharged or terminated other than by an instrument in writing signed by the Party against whom the enforcement of such waiver, discharge or termination is sought. No failure or delay by any Party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
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Section 10.05 Language. The official text of this Agreement and any notices given or made hereunder shall be in English.
Section 10.06 Assignment; No Third Party Beneficiaries. Other than as provided herein, the rights and obligations of each Party shall not be assigned without the prior consent of other Parties; provided, however, a Party may assign its respective rights and obligations under this Agreement, in whole or in part, to any affiliated investment funds of the Party, any limited partners or investment vehicles of the Party or such funds (other than any portfolio companies of the Party or such funds) and, subject to the consent of the other Parties (not to be unreasonably withheld or delayed), any other co-investors of the Party (as the case may be), but no such assignment shall relieve the Party from any of its obligations hereunder. This Agreement shall be binding upon the respective heirs, successors, legal representatives and permitted assigns of the Parties. Nothing in this Agreement, whether express or implied, is intended to or shall confer upon any person, other than the Parties and their heirs, successors, legal representatives and permitted assigns, any rights, benefits, claims or remedies whatsoever under or by reason of this Agreement or any provision hereof.
Section 10.07 No Partnership or Agency. The Parties are independent and nothing in this Agreement constitutes a Party as the trustee, fiduciary, agent, employee, partner or joint venturer of the other Party.
Section 10.08 Counterparts. This Agreement may be executed in counterparts and all counterparts taken together shall constitute one document. This Agreement shall not be effective until each Party has executed at least one counterpart.
Section 10.09 Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the Hong Kong Special Administrative Region, without giving effect to any choice of law or conflict of law rules or provisions that would cause the application of the laws of any other jurisdiction.
Section 10.10 Dispute Resolution.
(a) Subject to Section 10.11, any disputes, actions and proceedings against any Party or arising out of or in any way relating to this Agreement shall be submitted to the Hong Kong International Arbitration Centre (“HKIAC”) and resolved in accordance with the Arbitration Rules of HKIAC in force at the relevant time and as may be amended by this Section 10.10. The place of arbitration shall be Hong Kong. The official language of the arbitration shall be English and the tribunal shall consist of three arbitrators (each, an “Arbitrator”). The claimant(s), irrespective of number, shall nominate jointly one Arbitrator; the respondent(s), irrespective of number, shall nominate jointly one Arbitrator; and a third Arbitrator will be nominated jointly by the first two Arbitrators and shall serve as chairman of the tribunal. In the event the claimant(s) or respondent(s) or the first two Arbitrators shall fail to nominate or agree the joint nomination of an Arbitrator or the third Arbitrator within the time limits specified by the Rules, such Arbitrator shall be appointed promptly by the HKIAC. The tribunal shall have no authority to award punitive or other punitive-type damages. The award of the arbitration tribunal shall be final and binding upon the disputing parties. Any party to an award may apply to any court of competent jurisdiction for enforcement of such award and, for purposes of the enforcement of such award, the Parties irrevocably and unconditionally submit to the jurisdiction of any court of competent jurisdiction and waive any defenses to such enforcement based on lack of personal jurisdiction or inconvenient forum.
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(b) Notwithstanding the foregoing, the Parties hereby consent to and agree that in addition to any recourse to arbitration as set out in this Section 10.10, any Party may, to the extent permitted under the laws of the jurisdiction where application is made, seek an interim injunction from a court or other authority with competent jurisdiction and, notwithstanding that this Agreement is governed by the laws of the Hong Kong Special Administrative Region, a court or authority hearing an application for injunctive relief may apply the procedural law of the jurisdiction where the court or other authority is located in determining whether to grant the interim injunction. For the avoidance of doubt, this Section 10.10(b) is only applicable to the seeking of interim injunctions and does not restrict the application of Section 10.11 in any way.
Section 10.11 Remedies. Without prejudice to the rights and remedies otherwise available to any Party, including the right to claim money damages for breach of any provision hereof, any Party may bring an action for specific performance and/or injunctive or other equitable relief (without posting a bond or other security) to enforce or prevent any violations of any provision of this Agreement.
Article
XI
Definitions and Interpretation
Section 11.01 Definitions. In this Agreement, unless the context requires otherwise:
“ADSs” means the American Depositary Shares of the Target, each of which currently represents twenty Target Ordinary Shares.
“Advisors” means the legal, accounting, banking and other advisors and/or consultants of the Consortium, Holdco, the Parties and/or a Party, as the case may be, appointed in connection with the Transaction.
“Affiliate” means, with respect to any person, any other person that, directly or indirectly, Controls, is Controlled by or is under common Control with such specified person and “Affiliates” shall be construed accordingly.
“Agreement” means this Consortium Agreement, as amended, modified or supplemented from time to time in accordance with its terms.
“Arbitrator” has the meaning given in Section 10.10.
“Business Day” means any day (other than a Saturday or a Sunday) on which banks generally are open in the People’s Republic of China, Hong Kong and Japan, for the transaction of normal banking business.
“Claim” means a claim against any one or more of the Parties arising from or relating to the Transaction in respect of which a Party is, or is sought to be, made liable to pay any sum of money to any person other than a Party (or any of their respective Affiliates), whether on a joint and several basis or on any other basis.
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“Closing” means the consummation of the Transaction.
“Competing Proposal” means a proposal, offer or invitation to the Company, any Party or any of a Party’s Affiliates (other than the Transaction), that involves the acquisition of Control of the Target, a sale of all or a substantial part of the assets of the Target, a restructuring or recapitalization of the Target, or some other transaction that would adversely affect, prevent or materially reduce the likelihood of the consummation of the Transaction with the Parties.
“Confidential Information” includes (a) all written, oral or other information obtained in confidence by one Party from any other Party in connection with this Agreement or the Transaction, unless such information is already known to such Party or to others not known by such Party to be bound by a duty of confidentiality or such information is or becomes publicly available other than through a breach of this Agreement by such Party and (b) the terms of, and any negotiations or discussions relating to, the Transaction.
“Control” means the possession, directly or indirectly, of the power to direct the management and policies of a person whether through the ownership of voting securities, contract or otherwise.
“Discloser” has the meaning given in Section 7.02(a).
“Documentation” means the documentation required to implement the Transaction, including the Shareholders’ Agreement, debt financing documents, if any, filings or notifications made to or with any governmental agencies, including the SEC, and ancillary documentation, in each case, in the form to be agreed by the Parties.
“Exchange Act” has the meaning given in the recitals.
“Exclusivity Period” means the period beginning on May 25, 2020 and ending on the first to occur of (a) the date six (6) months after May 25, 2020 and (b) the mutually agreed termination of this Agreement pursuant to Section 6.01(b).
“HKIAC” has the meaning given in Section 10.10.
“Holdco” has the meaning given in the recitals.
“Liability” means a liability to pay a sum of money arising pursuant to a Claim (which sum is deemed to include all legal and other costs, damages, losses and expenses incurred in connection with (or arising directly or indirectly from) defending, disputing or otherwise dealing with any such Claim) where the liability arises from a judgment given by a court of competent jurisdiction, the final decision given in any binding arbitration proceedings or the agreed settlement of the Claim.
“Merger” has the meaning given in the recitals.
“Merger Sub” has the meaning given in the recitals.
“Nasdaq” has the meaning given in the recitals.
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“Offer” has the meaning given in the recitals.
“Offer Price” has the meaning given in the recitals.
“Parties” has the meaning given in the preamble.
“Recipient” has the meaning given in Section 7.02(a).
“Representative” of a Party means such Party’s, or such Party’s Affiliates’, officers, managers, directors, general partners, employees, outside counsel, accountants, consultants, financial advisors, potential sources of equity or debt financing (and their respective counsel).
“Respective Proportion” means, with respect to a Party, the proportion that such Party’s (and its Affiliates) planned equity participation in Holdco bears to the aggregate amount of all of the Parties’ (and their respective Affiliates) planned equity participation in Holdco.
“Rollover Shares” has the meaning given in the recitals.
“SEC” means the United States Securities and Exchange Commission.
“Securities” means (a) any ADSs, (b) any shares in the Target, and (c) any warrants, options and any other securities which are convertible into or exercisable for ADSs or shares in the Target.
“Shareholders’ Agreement” has the meaning given in Section 1.01(b).
“Surviving Company” has the meaning given in the recitals.
“Target” has the meaning given in the recitals.
“Target Ordinary Shares” means the issued and outstanding ordinary shares, par value US$0.0001 per share, of the Target, including the ordinary shares represented by ADSs.
“Transaction” has the meaning given in the recitals.
“Transfer” has the meaning given in Section 5.01(b).
Section 11.02 Statutory Provisions. All references to statutes, statutory provisions, enactments, directives or regulations shall include references to any consolidation, reenactment, modification or replacement of the same, any statute, statutory provision, enactment, directive or regulation of which it is a consolidation, re-enactment, modification or replacement and any subordinate legislation in force under any of the same from time to time.
Section 11.03 Recitals and Schedules. References to this Agreement include the recitals and schedules which form part of this Agreement for all purposes. References in this Agreement to the Parties are references respectively to the Parties and their legal personal representatives, successors and permitted assigns.
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Section 11.04 Meaning of References. In this Agreement, unless the context requires otherwise:
(a) words importing one gender shall be treated as importing any gender, words importing individuals shall be treated as importing corporations and vice versa, words importing the singular shall be treated as importing the plural and vice versa, and words importing the whole shall be treated as including a reference to any part thereof;
(b) references to a “person” shall include any individual, firm, body corporate, unincorporated association, government, state or agency of state, association, joint venture or partnership, in each case whether or not having a separate legal personality. References to a “company” shall be construed so as to include any company, corporation or other body corporate wherever and however incorporated or established;
(c) references to the word “include” or “including” (or any similar term) are not to be construed as implying any limitation;
(d) any reference to “writing” or “written” includes any method of reproducing words or text in a legible and non-transitory form;
(e) references to any document (including this Agreement) are references to that document as amended, consolidated, supplemented, novated or replaced from time to time;
(f) references to “US$” are to the lawful currency of the United States of America, as at the date of this Agreement; and
(g) references to “Target Ordinary Shares” shall include Target Ordinary Shares represented by ADSs.
Section 11.05 Headings. Section and paragraph headings and the table of contents are inserted for ease of reference only and shall not affect construction.
Section 11.06 Negotiation of the Agreement. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event that an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provisions of this Agreement.
[Signature page follows.]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered as of the date first written above.
JAPAN NK INVESTMENT K.K. | ||
By: | /s/ Mitsutoshi Nishiyama | |
Name: | Mitsutoshi Nishiyama | |
Title: | Representative Director |
[Signature Page to Consortium Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered as of the date first written above.
IDG-ACCEL CHINA CAPITAL L.P. | ||
By: | /s/ Chi Sing Ho | |
Name: | Chi Sing Ho | |
Title: | Authorized Signatory |
[Signature Page to Consortium Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered as of the date first written above.
IDG-ACCEL CHINA CAPITAL INVESTORS L.P. | ||
By: | /s/ Chi Sing Ho | |
Name: | Chi Sing Ho | |
Title: | Authorized Signatory |
[Signature Page to Consortium Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered as of the date first written above.
JOLMO SOLAR CAPITAL LTD. | ||
By: | /s/ Duan Xiaoguang | |
Name: | Duan Xiaoguang | |
Title: | Authorized Person |
[Signature Page to Consortium Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered as of the date first written above.
CES HOLDING LTD. | ||
By: | /s/ Duan Xiaoguang | |
Name: | Duan Xiaoguang | |
Title: | Director |
[Signature Page to Consortium Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered as of the date first written above.
JING KANG | |
/s/ Jing Kang |
[Signature Page to Consortium Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered as of the date first written above.
BIN SHI | |
/s/ Bin Shi |
[Signature Page to Consortium Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered as of the date first written above.
SINO-CENTURY HX INVESTMENTS LIMITED | ||
By: | /s/ Hao Wu | |
Name: | Hao Wu | |
Title: | Director |
[Signature Page to Consortium Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered as of the date first written above.
KAI DING | |
/s/ Kai Ding |
[Signature Page to Consortium Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered as of the date first written above.
TCL TRANSPORTATION HOLDINGS LIMITED | ||
By: | /s/ Wang Dewei | |
Name: | Wang Dewei | |
Title: | Director |
[Signature Page to Consortium Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered as of the date first written above.
ESTEEM VENTURE INVESTMENT LIMITED | ||
By: | /s/ Dong Ruili | |
Name: | Dong Ruili | |
Title: | Director |
[Signature Page to Consortium Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered as of the date first written above.
MAMAYA INVESTMENTS LTD | ||
/s/ Nancy Law | ||
By: | /s/ James Dingle | |
Name: | Nancy Law | |
James Dingle | ||
Title: | Senior Managers of HSBC PB | |
Corporate Services 1 Limited, Corporate | ||
Director of Mamaya Investment Ltd. | ||
Dated: July 2, 2020 |
[Signature Page to Consortium Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered as of the date first written above.
XANADU INVESTMENT LTD. (HK) | ||
By: | /s/ Eugen von Keller | |
Name: | Eugen von Keller | |
Title: | Director |
[Signature Page to Consortium Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered as of the date first written above.
ABDULLATEEF A. AL-TAMMAR | |
/s/ Abdullateef A. AL-Tammar |
[Signature Page to Consortium Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered as of the date first written above.
DEVELOPMENT HOLDING COMPANY LTD. | ||
By: | /s/ Bjoern Ludvig Ulfsson Nilsson | |
Name: | Bjoern Ludvig Ulfsson Nilsson | |
Title: | Director |
[Signature Page to Consortium Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered as of the date first written above.
BJOERN LUDVIG ULFSSON NILSSON | |
/s/ Bjoern Ludvig Ulfsson Nilsson |
[Signature Page to Consortium Agreement]
Schedule A
Existing Share Ownership
Target Ordinary Shares | ||||||||||||
Ordinary Shares | ADSs |
Other
Securities |
||||||||||
Parties and Investment Vehicles Affiliated with the Parties | ||||||||||||
Japan NK Investment K.K. | 45,019,850 | 5,354,405 | -- | |||||||||
IDG-Accel China Capital L.P. | 78,335,914 | 955,900 | -- | |||||||||
IDG-Accel China Capital Investors L.P. | 3,613,992 | 44,100 | -- | |||||||||
Jolmo Solar Capital Ltd. | 5,400,000 | -- | -- | |||||||||
CES Holding Ltd. | 8,000,000 | -- | -- | |||||||||
Jing Kang | 3,800,000 | -- | -- | |||||||||
Bin Shi | -- | 737,974 | -- | |||||||||
Sino-Century HX Investments Limited | 4,940,910 | -- | -- | |||||||||
Kai Ding1 | 1,000,000 | 455,466 | -- | |||||||||
TCL Transportation Holdings Limited2 | 46,834 | -- | ||||||||||
Esteem Venture Investment Limited | -- | 61,666 | -- | |||||||||
Mamaya Investments Ltd | -- | 16,667 | -- | |||||||||
Xanadu Investment Ltd. (HK) | -- | 70,000 | -- | |||||||||
Abdullateef A. AL-Tammar | -- | 44,005 | -- | |||||||||
Development Holding Company Ltd. | 4,000,000 | -- | -- | |||||||||
Bjoern Ludvig Ulfsson Nilsson | -- | 24,710 | -- |
1 Note: Mr. Kai Ding also holds 600,000 ADSs that will not be Rollover Shares, but shall be tendered in the Offer.
2 Note: TCL Transportation Holdings Limited also holds 146,499 ADSs that will not be Rollover Shares, but shall be tendered in the Offer.
-A-1 -
Schedule B
Adherence Agreement
THIS ADHERENCE AGREEMENT (this “Agreement”) is entered into on ____, 202_
BY:
[New Member], a [limited liability company] organized and existing under the laws of [] with its registered address at [] (the “New Member”).
RECITALS:
(A) On [] [], 2020, the parties listed on Annex A to this Agreement (the “Existing Members”) entered into a consortium agreement (the “Consortium Agreement”) and proposed to undertake an acquisition transaction (the “Transaction”) to acquire Sky Solar Holdings Co., Ltd. (the “Target”), an exempted company with limited liability incorporated under the laws of the Cayman Islands and listed on the Nasdaq Capital Market (“Nasdaq”), pursuant to which the Target would be delisted from Nasdaq and deregistered under the United States Securities Exchange Act of 1934, as amended;
(B) Additional members may be admitted to the Consortium pursuant to Section 1.02 of the Consortium Agreement.
(C) The New Member now wishes to participate in the Transaction contemplated under the Consortium Agreement, to sign this Agreement, and to be bound by the terms of the Consortium Agreement as a Party thereto.
THIS AGREEMENT WITNESSES as follows:
1. | Defined Terms And Construction |
(a) | Capitalized terms used but not defined herein shall have the meaning set forth in the Consortium Agreement. |
(b) | This Agreement shall be incorporated into the Consortium Agreement as if expressly incorporated into the Consortium Agreement. |
2. | Undertakings |
(a) | Assumption of obligations |
The New Member undertakes to each other Party to this Agreement that it will, with effect from the date hereof, perform and comply with each of the obligations of a Party as if it had been a Party to the Consortium Agreement at the date of execution thereof and the Existing Members agree that where there is a reference to a “Party” it shall be deemed to include a reference to the New Member and with effect from the date hereof, all the rights of a Party provided under the Consortium Agreement will be accorded to the New Member as if the New Member had been a Party under the Consortium Agreement at the date of execution thereof.
-B-1 -
3. | Representations And Warranties |
(a) | The New Member represents and warrants to each of the other Parties as follows: |
(1) | Status |
It is a company duly organized, established and validly existing under the laws of the jurisdiction stated in preamble 1 of this Agreement and has all requisite power and authority to own, lease and operate its assets and to conduct the business which it conducts.
(2) | Due Authorization |
It has full power and authority to execute and deliver this Agreement and the execution, delivery and performance of this Agreement by the New Member has been duly authorized by all necessary action on behalf of the New Member.
(3) | Legal, Valid and Binding Obligation |
This Agreement has been duly executed and delivered by the New Member and constitutes the legal, valid and binding obligation of the New Member, enforceable against it in accordance with the terms hereof.
(4) | Ownership |
As of the date of this Agreement, (i) the New Member holds (A) of record the number of outstanding Target Ordinary Shares set forth under the heading “Shares Held of Record” next to its name on Schedule A hereto (specifying the number held as ordinary shares and in the form of ADSs), free and clear of any encumbrances or restrictions, and (B) the other Securities set forth under the heading “Other Securities” next to its name on Schedule A hereto, in each case free and clear of any encumbrances or restrictions; (ii) the New Member has the sole right to control the voting and disposition of such Target Ordinary Shares (if any) and any other Securities (if any) held by it; and (iii) none of the New Member and its Affiliates owns, directly or indirectly, any Target Ordinary Shares or other Securities, other than as set forth on Schedule A hereto.
(5) | Reliance |
Each Party acknowledges that the other Parties have entered into this Agreement on the basis of and reliance upon (among other things) the representations and warranties in Sections 3(a)(1) to 3(a)(4) and have been induced by them to enter into this Agreement.
4. | Notice |
Any notice, request, instruction or other document to be provided hereunder by any Party to another Party shall be in writing and delivered personally or sent by facsimile, overnight courier or electronic mail, to the address, facsimile number or electronic mail address provided under the Consortium Agreement, or to any other address, facsimile number or electronic mail address as a Party may hereafter specify for the purpose by notice to the other Parties hereto. All such notices, requests and other communications, (a) if hand delivered, shall be deemed received on the date of receipt by the recipient thereof if received prior to 6:00 p.m. on a Business Day in the place of receipt; otherwise, any such notice, request or communication shall be deemed to have been received on the next succeeding Business Day in the place of receipt; (b) if posted by mail, it shall be treated as delivered five (5) days after posting; (c) if transmitted by facsimile or electronic mail, shall be deemed received upon confirmation of delivery.
-B-2 -
5. | Governing Law |
This Agreement shall be governed by, and construed in accordance with, the laws of the Hong Kong Special Administrative Region, without giving effect to any choice of law or conflict of law rules or provisions that would cause the application of the laws of any other jurisdiction.
6. | Dispute Resolution. |
(a) | Any disputes, actions and proceedings against any Party or arising out of or in any way relating to this Agreement shall be submitted to the Hong Kong International Arbitration Centre (“HKIAC”) and resolved in accordance with the Arbitration Rules of HKIAC in force at the relevant time and as may be amended by this Section 6.1. The place of arbitration shall be Hong Kong. The official language of the arbitration shall be English and the tribunal shall consist of three arbitrators (each, an “Arbitrator”). The claimant(s), irrespective of number, shall nominate jointly one Arbitrator; the respondent(s), irrespective of number, shall nominate jointly one Arbitrator; and a third Arbitrator will be nominated jointly by the first two Arbitrators and shall serve as chairman of the tribunal. In the event the claimant(s) or respondent(s) or the first two Arbitrators shall fail to nominate or agree the joint nomination of an Arbitrator or the third Arbitrator within the time limits specified by the Rules, such Arbitrator shall be appointed promptly by the HKIAC. The tribunal shall have no authority to award punitive or other punitive-type damages. The award of the arbitration tribunal shall be final and binding upon the disputing parties. Any party to an award may apply to any court of competent jurisdiction for enforcement of such award and, for purposes of the enforcement of such award, the Parties irrevocably and unconditionally submit to the jurisdiction of any court of competent jurisdiction and waive any defenses to such enforcement based on lack of personal jurisdiction or inconvenient forum. |
(b) | Notwithstanding the foregoing, the Parties hereby consent to and agree that in addition to any recourse to arbitration as set out in this Section 6, any Party may, to the extent permitted under the laws of the jurisdiction where application is made, seek an interim injunction from a court or other authority with competent jurisdiction and, notwithstanding that this Agreement is governed by the laws of the Hong Kong Special Administrative Region, a court or authority hearing an application for injunctive relief may apply the procedural law of the jurisdiction where the court or other authority is located in determining whether to grant the interim injunction. For the avoidance of doubt, this Section 6(b) is only applicable to the seeking of interim injunctions and does not restrict the application of Section 6(a) in any way. |
-B-3 -
7. | Specific Performance. |
Each Party acknowledges and agrees that the other Parties would be irreparably injured by a breach of this Agreement by it and that money damages alone are an inadequate remedy for actual or threatened breach of this Agreement. Accordingly, each Party shall be entitled to specific performance or injunctive or other equitable relief (without posting a bond or other security) to enforce or prevent any violations of any provision of this Agreement, in addition to all other rights and remedies available at law or in equity to such Party, including the right to claim money damages for breach of any provision of this Agreement.
[Signature page follows.]
-B-4 -
IN WITNESS WHEREOF, the New Member has caused this Agreement to be duly executed by its respective authorized officers as of the day and year first above written.
[New Member’s Name] | ||
By: | ||
Name: | ||
Position: | ||
Notice details | ||
Address: | ||
Email: | ||
Facsimile: |
-B-5 -
ANNEX A (ADHERENCE AGREEMENT)
EXISTING MEMBERS
Japan NK Investment K.K.
IDG-Accel China Capital L.P.
IDG-Accel China Capital Investors L.P.
Jolmo Solar Capital Ltd.
CES Holding Ltd.
Jing Kang
Bin Shi
Sino-Century HX Investments Limited
Kai Ding
TCL Transportation Holdings Limited
Esteem Venture Investment Limited
Mamaya Investments Ltd
Xanadu Investment Ltd. (HK)
Abdullateef A. AL-Tammar
Development Holding Company Ltd.
Bjoern Ludvig Ulfsson Nilsson
-B-6 -
Schedule A (ADHERENCE AGREEMENT)
SHARES HELD OF RECORD
New Member |
Shares Held Record |
Other
|
|
Ordinary Shares |
ADSs |
||
[New Member’s Name] | |||
-B-7 -
Appendix A
terms and conditions of
shareholders’ Agreement
[See attached.]
APPENDIX B
NOTICE INFORMATION
[See attached.]
Exhibit (d)(2)
ROLLOVER AND VOTING AGREEMENT
This ROLLOVER AND VOTING AGREEMENT (this “Agreement”) is entered into as of July 6, 2020 by and among (1) Square Limited, an exempted company incorporated under the laws of the Cayman Islands (“Parent”), and (2) certain shareholders (each, a “Shareholder” and collectively, the “Shareholders”) of Sky Solar Holdings, Ltd., an exempted company incorporated under the laws of the Cayman Islands (the “Company”).
RECITALS
WHEREAS, concurrently with the execution of this Agreement, Square Acquisition Co., an exempted company incorporated under the laws of the Cayman Islands and a direct wholly-owned subsidiary of Parent (“Merger Sub”) has launched a tender offer (the “Offer”) to acquire all issued and outstanding ordinary shares, par value US$0.0001 of the Company (“Shares”) (including Shares represented by American Depositary Shares of the Company, each representing twenty (20) Shares (the “ADSs”), other than the Rollover Shares (as defined below), at a price of $0.30 in cash per Target Ordinary Share, or $6.00 in cash per ADS, net to the seller in cash, without interest, less any applicable withholding taxes (the “Offer Price”);
WHEREAS, as soon as practical following the acceptance and payment for Shares tendered (and not validly withdrawn) in the Offer (the “Offer Consummation”) in accordance with its terms, Merger Sub and the Company shall execute a plan of merger (the “Plan of Merger”) and the Company and Merger Sub shall file the Plan of Merger and other documents required under the Companies Law (as amended) of the Cayman Islands (“CICL”) to effect the Merger with the Registrar of Companies of the Cayman Islands as provided by Section 233(7) of the CICL, pursuant to which Merger Sub will be merged with and into the Company and all outstanding Shares (other than the Rollover Shares) shall be cancelled in consideration (the “Merger Consideration”) for the right to receive the Offer Price (the “Merger”, and together with the Offer and other transactions contemplated in connection therewith (including, for the avoidance of doubt, any debt financing transactions), the “Transactions”), with the Company continuing as the surviving company and becoming a wholly-owned subsidiary of Parent;
WHEREAS, the Merger shall become effective upon the date when the Plan of Merger is registered by the Registrar of Companies of the Cayman Islands, or as specified in the Plan of Merger in accordance with the CICL (the “Effective Time”, and the time at which both the Offer and Merger have been successfully consummated, the “Closing”);
WHEREAS, as of the date hereof, each Shareholder is the beneficial owner (as defined under Rule 13d-3 of the Exchange Act) of a certain number of Shares (including Shares represented by ADSs) as set forth in the column titled “Rollover Shares” opposite such Shareholder’s name on Schedule A hereto (such Shares, together with any other Shares and securities of the Company acquired (whether beneficially or of record) by such Shareholder after the date hereof and prior to the earlier of the Effective Time and the termination of all of such Shareholder’s obligations under this Agreement, including, without limitation, any Shares or securities of the Company acquired by means of purchase, dividend or distribution, or issued upon the exercise or settlement of any warrants or the conversion of any convertible securities or otherwise, being collectively referred to herein as the “Rollover Shares”);
WHEREAS, each Shareholder has, concurrently with the execution of this Agreement, subscribed for newly issued ordinary shares in the Parent as set forth on Schedule B hereto;
WHEREAS, in connection with the consummation of the Merger, each Shareholder agrees to (a) have all of the Rollover Shares cancelled for no Merger Consideration and (b) if required, vote the Rollover Shares at any Shareholders’ Meeting in favor of the Transactions, in each case, upon the terms and conditions set forth herein;
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
Section 1.1 Voting. From and after the date hereof until the earlier of (x) the Effective Time and (y) the termination of the Amended and Restated Consortium Agreement, by and among the Shareholders and dated as of July 6, 2020 (the “Consortium Agreement”), pursuant to and in compliance with the terms thereof (such earlier time, the “Expiration Time”), each of the Shareholders hereby irrevocably and unconditionally agrees that at any annual or extraordinary general meeting of the shareholders of the Company (a “Shareholders’ Meeting”), however called, at which any of the matters described in paragraphs (a) – (f) hereof is to be considered (and any adjournment thereof), or in connection with any written resolution of the Company’s shareholders which considers the same matters, each of the Shareholders shall (i) in case of a meeting, appear or cause its or his representative(s) to appear at such meeting or otherwise cause its or his Rollover Shares 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 Rollover Shares:
(a) for the authorization and approval of the Plan of Merger and the Transactions, including the Merger and any associated debt financing transactions,
(b) against any competing transaction or any other transaction, proposal, agreement or action made in opposition to authorization and approval of the Plan of Merger or in competition or inconsistent with the Transactions, including the Merger,
(c) against any other action, agreement or transaction that is intended, that could reasonably be expected, or the effect of which could reasonably be expected, to materially impede, interfere with, delay, postpone, discourage or adversely affect any of the Transactions, including the Merger, or this Agreement or the performance by such Shareholder of its obligations under this Agreement, including without limitation, (i) any extraordinary corporate transaction, such as a scheme of arrangement, merger, consolidation or other business combination involving the Company or any of its Subsidiaries (other than the Merger); (ii) a sale, lease or transfer of a material amount of assets of the Company or any of its Subsidiaries or a reorganization, recapitalization or liquidation of the Company or any of its Subsidiaries; or (iii) any material change in the present capitalization or dividend policy of the Company or any amendment or other change to the Company’s memorandum or articles of association, except if approved in writing by Parent,
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(d) against any action, proposal, transaction or agreement that could reasonably be expected to result in a breach in any respect of any covenant, representation or warranty or any other obligation or agreement of any Shareholder contained in this Agreement or otherwise reasonably requested by Parent or the Company in order to consummate the Transactions, including the Merger,
(e) in favor of any other matter necessary to effect the Transactions, including the Merger, and
(f) in favor of any adjournment or postponement of the Shareholders’ Meeting or other annual or extraordinary general meeting of the shareholders of the Company, however called, at which any of the matters described in paragraphs (a) – (e) in this Section 1.1 is to be considered (and any adjournment or postponement thereof) as may be reasonably requested by Parent.
Section 1.2 Restrictions on Transfers. Except as provided for in Article II below, each of the Shareholders hereby agrees that, from the date hereof until the Expiration Time, such Shareholder shall not, without the prior written consent of Parent, directly or indirectly, (a) offer for sale, sell (constructively or otherwise), transfer, assign, tender in any tender or exchange offer, pledge, charge, 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 Rollover Shares or any interest therein, 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 Rollover Shares and (i) has, or would reasonably be expected to have, the effect of reducing or limiting such Shareholder’s economic interest in such Rollover Shares and/or (ii) grants a third party the right to vote or direct the voting of such Rollover Shares (any such transaction, a “Derivative Transaction”), (b) deposit any Rollover Shares 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 Rollover 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, disabling, or materially delaying such Shareholder from performing any of its 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 in violation of this Section 1.2 shall be null and void.
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Section 1.3 Grant of Irrevocable Proxy; Appointment of Proxy.
(a) Effective immediately upon the Offer Consummation and until the Effective Time, each of the Shareholders hereby irrevocably appoints Parent and any designee thereof as its 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) such Shareholder’s Rollover Shares at any Shareholders’ Meeting or other annual or extraordinary meeting of the shareholders of the Company, however called, including any adjournment thereof. Each of the Shareholders 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 Rollover Shares, if any, are not irrevocable and such Shareholder hereby revokes (or causes to be revoked) any and all previous proxies, powers of attorney, instructions or other requests with respect to such Shareholder’s Rollover Shares. Each of the Shareholders shall take such further action or execute such other instruments as may be necessary to effectuate the intent of this proxy.
(b) Each of the Shareholders affirms that the irrevocable proxy is coupled with an interest and, except as set forth in this Section 1.3, is intended to be irrevocable prior to the Effective Time. If for any reason the proxy granted herein by any Shareholder is not irrevocable, then such Shareholder agrees to vote such Shareholder’s Rollover Shares only in accordance with any written instructions provided by Parent prior to the Effective Time. The parties hereto agree that the foregoing is a voting agreement.
ARTICLE II
Cancellation and Parent Issuance
Section 2.1 Cancellation. Subject to the terms and conditions set forth herein, each Shareholder agrees that all of the Rollover Shares held by it shall be cancelled for no consideration in connection with the Merger. Each Shareholder will take all actions necessary to cause its or his Rollover Shares to be treated as set forth herein, including, but not limited to, cooperating to make any contributions of the Rollover Shares to Parent and/or transfers of the Rollover Shares to Merger Sub necessary to facilitate such cancellation.
Section 2.2 Issuance of Parent Shares. Upon the Offer Consummation, and in consideration and in anticipation of (a) the cancellation of the Rollover Shares held by the Shareholders in accordance with Section 2.1, Parent shall issue to each Shareholder (or, if designated by such Shareholder in writing, an Affiliate of such Shareholder), the number of newly issued ordinary shares of Parent, par value US$0.01 per share (“Parent Shares”), as set forth opposite such Shareholder’s name on Schedule B hereto, at a consideration per share equal to its par value. Each Shareholder hereby acknowledges and agrees that (i) delivery of the Parent Shares that such Shareholder subscribed under this Section 2.2 (the “Subscription Shares”) constitutes complete satisfaction of all obligations towards or sums due to such Shareholder by Parent and Merger Sub in respect of the Rollover Shares held by such Shareholder and to be cancelled as contemplated by Section 2.1 above, and (ii) such Shareholder shall have no right to any Merger Consideration in respect of its Rollover Shares.
Section 2.3 Rollover Closing. The closing (the “Rollover Closing”) of the subscription and issuance of Subscription Shares contemplated hereby shall take place immediately upon the Offer Consummation.
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Section 2.4 Deposit of Rollover Shares. No later than three (3) Business Days prior to the Closing, the Shareholders shall deliver or cause to be delivered to Parent all certificates representing such Rollover Shares (if applicable) in such Persons’ possession, for cancellation 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.
ARTICLE III
Representations, Warranties and Covenants of the Shareholders
Section 3.1 Representations and Warranties. Each Shareholder represents and warrants, severally and not jointly, to Parent that, as of the date hereof and as of the Closing (unless another date is specified herein):
(a) each Shareholder has full legal right, power, capacity and authority to execute and deliver this Agreement, to perform its or his 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 corporate or similar action on the part of such Shareholder and no other corporate or similar actions or proceedings on the part of such Shareholder are necessary to authorize this Agreement or to consummate the transactions contemplated hereby;
(c) assuming due authorization, execution and delivery by Parent and the Company, this Agreement constitutes a legal, valid and binding agreement of such Shareholder, enforceable against such Shareholder in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law);
(d) (i) such Shareholder (A) is and, immediately prior to the Closing, will be the beneficial and (in the case of Rollover Shares that are ordinary shares, legal) owner of, and will have good and valid title to, its Rollover Shares, free and clear of Liens other than as created by this Agreement or that otherwise would not prevent, impede or interfere with or adversely affecting the performance by such Shareholder of its obligations under this Agreement (such Liens, “Permitted Liens”), and (B) has and, as of the Closing will have, sole voting power, power of disposition, and power to control dissenter’s rights, in each case with respect to all of its or his Rollover Shares, 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 People’s Republic of China and the terms of this Agreement; (ii) except as contemplated hereby or under Permitted Liens, there are no options, warrants or other rights, agreements, arrangements or commitments of any character to which such Shareholder is a party relating to the transfer, pledge, charge or other disposition or voting of any of its or his Rollover Shares and the Rollover Shares held by such Shareholder 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, transfer, pledge, charge or other disposition of such Rollover Shares other than this Agreement; (iii) other than under a Permitted Lien, such Shareholder has not Transferred any interest in any of its Rollover Shares pursuant to any Derivative Transaction; (iv) as of the date hereof, other than its or his Rollover Shares, 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 or Derivative Transactions); (v) except with the prior written consent of Parent or contemplated under this Agreement, such Shareholder has not, directly or indirectly, offered or agreed to sell, transfer, assign, tender in any tender or exchange offer or similar transactions, pledge, charge or otherwise dispose of, either voluntarily or involuntarily, or knowingly enter into any contract with respect to the transfer, pledge, charge or other disposition of Rollover Shares or any interest therein, nor does such Shareholder possess any intention to effect any of the aforementioned actions under this subsection (v) prior to the Closing; and (vi) such Shareholder has not appointed or granted any proxy or power of attorney that is still in effect with respect to any of its or his Rollover Shares;
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(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 (i) conflict with or violate any provision of the organizational documents of such Shareholder, (ii) 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, in each case which have, or could have, the effect of preventing, impeding or interfering with or adversely affecting the performance by such Shareholder of its obligations under this Agreement, or (iii) violate any order, writ, injunction, decree, statute, rule or regulation applicable to such Shareholder or any of such Shareholder’s properties or assets; and
(f) there is no action pending or threatened against such Shareholder or any of its or his Affiliates that would reasonably be expected, individually or in the aggregate, to restrict or prohibit the performance by such Shareholder of its obligations under this Agreement or to prevent or materially impair the consummation of the Transactions, including the Merger. None of such Shareholder or any of its affiliates is subject to any continuing order of, consent decree, settlement agreement or other similar written agreement with, or continuing investigation by, any governmental authority, or any order, writ, judgment, injunction, decree, determination or award of any governmental authority that would reasonably be expected, individually or in the aggregate, to restrict or prohibit the performance by such Shareholder of its obligations under this Agreement or to prevent or materially impair the consummation of the Transactions, including the Merger.
Section 3.2 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 obligations under this Agreement;
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(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 Rollover Shares (including, without limitation, any rights under Section 238 of the CICL) prior to the Expiration Time;
(c) agrees to publication and disclosure in the documents filed with the SEC in connection with the Offer (including the Offer to Purchase), 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;
(d) agrees and covenants that such Shareholder shall promptly (and in any event within twenty-four (24) hours) notify Parent and the Company 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, or through any derivative security or Derivative Transaction;
(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, as applicable, to be necessary or desirable to carry out the provisions of this Agreement; and
(f) agrees and covenants that, should the Merger not have occurred by the date that is six (6) months following the date of the Offer Consummation, then each Shareholder shall reasonably cooperate with Parent in order to contribute the Rollover Shares owned by such Shareholder to Parent, including but not limited to taking, or causing to be taken, all actions; filing, or causing to be filed, all documents; giving, or causing to be given, all notices under applicable law or otherwise; and obtaining, or causing to be obtained, all authorizations, consents, waivers, approvals, permits or orders under any law, contract or otherwise, in each case in order to consummate such contribution.
Section 3.3 Agreement to Tender. The parties acknowledge that Shareholders Kai Ding and TCL Transportation Holdings Limited (the “Partial Tender Holders”) each own certain ADSs that shall not constitute Rollover Shares hereunder (the “Non-Rollover Shares”). Accordingly, each Partial Tender Holder shall validly tender or cause to be tendered to Merger Sub all such Non-Rollover Shares beneficially owned by such Partial Tender Holder, free and clear of all liens, pursuant to and in accordance with the terms of the Offer as described in the Offer to Purchase, dated July 6, 2020 (the “Offer to Purchase”) no later than the scheduled or extended expiration time of the Offer. Each Partial Tender Holder agrees that, notwithstanding anything to the contrary in the Offer to Purchase, after a Partial Tender Holder validly tenders his or its Non-Rollover Shares to Merger Sub in accordance with the terms of the Offer, such Partial Tender Holder may not withdraw or cause to be withdrawn the tender of any of such Non-Rollover Shares from the Offer, unless this Agreement is terminated in accordance with its terms. For the avoidance of doubt, the Non-Rollover Shares beneficially owned by Kai Ding constitute 600,000 ADSs and the Non-Rollover Shares beneficially owned by TCL Transportation Holdings Limited consist of 146,499 ADSs.
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ARTICLE IV
Representations and Warranties of Parent
Section 4.1 Parent represents and warrants to each Shareholder that as of the date hereof and as of the Closing (unless another date is specified herein):
(a) Parent is an exempted company duly incorporated, validly existing and in good standing under the laws of the Cayman Islands and has all requisite corporate or similar power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Parent and the execution, delivery and performance of this Agreement by Parent and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of Parent and no other corporate actions or proceedings on the part of Parent are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. Assuming due authorization, execution and delivery by the Shareholders and the Company, this Agreement 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) 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 Parent or any of property Parent or asset is bound or affected, or (C) violate any order, writ, injunction, decree, statute, rule or regulation applicable to Parent or any of Parent’s properties or assets.
(c) At and immediately after the Rollover Closing (A) the authorized share capital of Parent shall consist of 5,000,000 Parent Shares, (B) each Shareholder shall own beneficially and of record such number of Parent Shares as set forth opposite its or his name on Schedule B hereto, and (C) other than as set forth on Schedule B hereto, no other Parent Shares shall be issued or outstanding. At and immediately after the Rollover Closing, there shall be (i) no options, warrants, or other rights to acquire share capital of Parent, (ii) no outstanding securities exchangeable or exercisable for or convertible into share capital of Parent, and (iii) no outstanding rights to acquire or obligations to issue any such share capital, options, warrants, rights or securities.
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(d) At the Rollover Closing, the Parent Shares will be duly authorized, validly issued, fully paid and non-assessable, and free and clear of all liens, preemptive rights, rights of first refusal, subscription and similar rights (other than any such rights set forth in an agreement amongst the Shareholders) when issued.
ARTICLE V
Termination
Section 5.1 This Agreement, and the obligations of the Shareholders hereunder, shall terminate and be of no further force or effect immediately upon the earlier to occur of (a) the Closing, and (b) the date of termination of the Consortium Agreement; provided, that this Article V and Article VI and, if such termination occurs after the Offer Consummation, Section 1.3, shall survive any termination of this Agreement. Nothing in this Article V shall relieve or otherwise limit any party’s liability for any breach of this Agreement prior to the termination of this Agreement.
ARTICLE VI
Miscellaneous
Section 6.1 Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, by facsimile or by international overnight courier to the respective parties at the address set forth on Schedule C hereto under each party’s name (or at such other address for a party as shall be specified in a notice given in accordance with this Section 6.1).
Section 6.2 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 capacity as a beneficial owner of the Rollover Shares owned by it and not in any other capacity (including without limitation any capacity as a director, member of any board committee or officer of the Company) and (ii) nothing in this Agreement shall obligate any Shareholder or its representatives to take, or forbear from taking, as a director, member of any board committee or officer of the Company, any action which is inconsistent with its or his fiduciary duties under the applicable laws.
Section 6.3 Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, it shall be adjusted rather than voided, if possible, in order to achieve the intent of the parties to the maximum extent possible. 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. In any event, the invalidity or unenforceability of any provision of this Agreement in any jurisdiction shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of this Agreement, including that provision, in any other jurisdiction.
Section 6.4 Entire Agreement. This Agreement and the agreements contemplated thereby, constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof.
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Section 6.5 Specific Performance. The Shareholders acknowledge and agree that monetary damages would not be an adequate remedy for Parent in the event that any covenant or agreement of the Shareholders in this Agreement is not performed in accordance with its terms, and therefore agree that, in addition to and without limiting any other remedy or right available to Parent (including the right to simultaneously seek monetary damages), Parent 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. The Shareholders agree 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 of Parent 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 such right, power or remedy by Parent shall not preclude the simultaneous or later exercise of any other such right, power or remedy by the Company.
Section 6.6 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 and 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 6.7 Governing Law. This Agreement shall be interpreted, construed and governed by and in accordance with the laws of the State of New York without regard to the conflicts of law principles thereof, except that the following matters arising out of or relating to this Agreement shall be interpreted, construed and governed by and in accordance with the laws of the Cayman Islands in respect of which the parties hereto hereby irrevocably submit to the nonexclusive jurisdiction of the courts of the Cayman Islands: the Merger, the vesting of the undertaking, property and liabilities of Merger Sub in the Surviving Company, the cancellation of the Shares (including Shares represented by ADSs), the rights (if any) provided for in Section 238 of the CICL with respect to any dissenting Shares, the fiduciary or other duties of the directors of Merger Sub and the internal corporate affairs of Merger Sub.
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Section 6.8 Dispute Resolution.
(a) Subject to the exception for jurisdiction of the courts of the Cayman Islands in Section 6.7, any disputes, actions and proceedings against any party arising out of or in any way relating to this Agreement shall be submitted to the Hong Kong International Arbitration Centre (“HKIAC”) and resolved in accordance with the Arbitration Rules of HKIAC in force at the relevant time and as may be amended by this Section 6.8 (the “Rules”). The place of arbitration shall be Hong Kong. The official language of the arbitration shall be English and the arbitration tribunal shall consist of three arbitrators (each, an “Arbitrator”). The claimant(s), irrespective of number, shall nominate jointly one Arbitrator; the respondent(s), irrespective of number, shall nominate jointly one Arbitrator; and a third Arbitrator will be nominated jointly by the first two Arbitrators and shall serve as chairman of the arbitration tribunal. In the event the claimant(s) or respondent(s) or the first two Arbitrators shall fail to nominate or agree the joint nomination of an Arbitrator or the third Arbitrator within the time limits specified by the Rules, such Arbitrator shall be appointed promptly by the HKIAC. The arbitration tribunal shall have no authority to award punitive or other punitive-type damages. The award of the arbitration tribunal shall be final and binding upon the disputing parties. Any party to an award may apply to any court of competent jurisdiction for enforcement of such award and, for purposes of the enforcement of such award, the parties irrevocably and unconditionally submit to the jurisdiction of any court of competent jurisdiction and waive any defenses to such enforcement based on lack of personal jurisdiction or inconvenient forum.
(b) Notwithstanding anything to the contrary contained herein, the parties hereby consent to and agree that in addition to any recourse to arbitration as set out in this Section 6.8, the Company may, to the extent permitted under the laws of the jurisdiction where application is made, seek an interim injunction from a court or other authority with competent jurisdiction and, notwithstanding that this Agreement is governed by the laws of the State of New York or the Cayman Islands, as applicable, a court or authority hearing an application for injunctive relief may apply the procedural law of the jurisdiction where the court or other authority is located in determining whether to grant the interim injunction. For the avoidance of doubt, this Section 6.8(b) is only applicable to the seeking of interim injunctions and does not restrict the application of Section 6.8(a) hereof in any way.
Section 6.9 No Third Party Beneficiaries. There are no third party beneficiaries of this Agreement and nothing in this Agreement, express or implied, is intended to confer on any person other than the parties hereto (and their respective successors, heirs and permitted assigns), any rights, remedies, obligations or liabilities, except as specifically set forth in this Agreement.
Section 6.10 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; provided, that no assignment by any party shall relieve the assigning party of any of its obligations hereunder. 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.
Section 6.11 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 6.12 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 its or his 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.
PARENT | ||
SQUARE LIMITED | ||
By: | /s/ Chen Rui | |
Name: | Chen Rui | |
Title: | Director |
[Signature Page to Rollover and Support Agreement]
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the date and year first written above.
SHAREHOLDERS | ||
JAPAN NK INVESTMENT K.K. | ||
By: | /s/ Mitsutoshi Nishiyama | |
Name: | Mitsutoshi Nishiyama | |
Title: | Representative Director |
[Signature Page to Rollover and Support Agreement]
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the date and year first written above.
SHAREHOLDERS | ||
IDG-ACCEL CHINA CAPITAL L.P. | ||
By: | /s/ Chi Sing Ho | |
Name: | Chi Sing Ho | |
Title: | Authorized Signatory |
[Signature Page to Rollover and Support Agreement]
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the date and year first written above.
SHAREHOLDERS | ||
IDG-ACCEL CHINA CAPITAL INVESTORS L.P. | ||
By: | /s/ Chi Sing Ho | |
Name: | Chi Sing Ho | |
Title: | Authorized Signatory |
[Signature Page to Rollover and Support Agreement]
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the date and year first written above.
SHAREHOLDERS | ||
JOLMO SOLAR CAPITAL LTD. | ||
By: | /s/ Duan Xiaoguang | |
Name: | Duan Xiaoguang | |
Title: | Authorized Person |
[Signature Page to Rollover and Support Agreement]
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the date and year first written above.
SHAREHOLDERS | ||
CES HOLDING LTD. | ||
By: | /s/ Duan Xiaoguang | |
Name: | Duan Xiaoguang | |
Title: | Director |
[Signature Page to Rollover and Support Agreement]
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the date and year first written above.
SHAREHOLDERS | |
JING KANG | |
/s/ Jing Kang |
[Signature Page to Rollover and Support Agreement]
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the date and year first written above.
SHAREHOLDERS | |
BIN SHI | |
/s/ Bin Shi |
[Signature Page to Rollover and Support Agreement]
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the date and year first written above.
SHAREHOLDERS | ||
SINO-CENTURY HX INVESTMENTS
LIMITED |
||
By: | /s/ Hao Wu | |
Name: | Hao Wu | |
Title: | Director |
[Signature Page to Rollover and Support Agreement]
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the date and year first written above.
SHAREHOLDERS | |
KAI DING | |
/s/ Kai Ding |
[Signature Page to Rollover and Support Agreement]
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the date and year first written above.
SHAREHOLDERS | ||
TCL TRANSPORTATION HOLDINGS
LIMITED |
||
By: | /s/ Wang Dewei | |
Name: | Wang Dewei | |
Title: | Director |
[Signature Page to Rollover and Support Agreement]
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the date and year first written above.
SHAREHOLDERS | ||
ESTEEM VENTURE INVESTMENT LIMITED | ||
By: | /s/ Dong Ruili | |
Name: | Dong Ruili | |
Title: | Director |
[Signature Page to Rollover and Support Agreement]
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the date and year first written above.
SHAREHOLDERS | ||
MAMAYA INVESTMENTS LTD | ||
/s/ Nancy Law | ||
By: | /s/ James Dingle | |
Name: | Nancy Law | |
James Dingle | ||
Title: | Senior Managers of HSBC PB | |
Corporate Services 1 Limited, Corporate | ||
Director of Mamaya Investment Ltd. | ||
Dated: | July 2, 2020 |
[Signature Page to Rollover and Support Agreement]
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the date and year first written above.
SHAREHOLDERS | ||
XANADU INVESTMENT LTD. (HK) | ||
By: | /s/ Eugen von Keller | |
Name: | Eugen von Keller | |
Title: | Director |
[Signature Page to Rollover and Support Agreement]
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the date and year first written above.
SHAREHOLDERS | |
ABDULLATEEF A. AL-TAMMAR | |
/s/ Abdullateef A. AL-Tammar |
[Signature Page to Rollover and Support Agreement]
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the date and year first written above.
SHAREHOLDERS | ||
DEVELOPMENT HOLDING COMPANY LTD. | ||
By: | /s/ Bjoern Ludvig Ulfsson Nilsson | |
Name: | Bjoern Ludvig Ulfsson Nilsson | |
Title: | Director |
[Signature Page to Rollover and Support Agreement]
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the date and year first written above.
SHAREHOLDERS | |
BJOERN LUDVIG ULFSSON NILSSON | |
/s/ Bjoern Ludvig Ulfsson Nilsson |
[Signature Page to Rollover and Support Agreement]
Schedule A
Rollover Shares
Target Ordinary Shares | ||||||||
Ordinary Shares | ADSs | |||||||
Shareholder | ||||||||
Japan NK Investment K.K. | 45,019,850 | 5,354,405 | ||||||
IDG-Accel China Capital L.P. | 78,335,914 | 955,900 | ||||||
IDG-Accel China Capital Investors L.P. | 3,613,992 | 44,100 | ||||||
Jolmo Solar Capital Ltd. | 5,400,000 | — | ||||||
CES Holding Ltd. | 8,000,000 | — | ||||||
Jing Kang | 3,800,000 | — | ||||||
Bin Shi | — | 737,974 | ||||||
Sino-Century HX Investments Limited | 4,940,910 | — | ||||||
Kai Ding1 | 1,000,000 | 455,466 | ||||||
TCL Transportation Holdings Limited2 | 46,834 | |||||||
Esteem Venture Investment Limited | — | 61,666 | ||||||
Mamaya Investments Ltd | — | 16,667 | ||||||
Xanadu Investment Ltd. (HK) | — | 70,000 | ||||||
Abdullateef A. AL-Tammar | — | 44,005 | ||||||
Development Holding Company Ltd. | 4,000,000 | — | ||||||
Bjoern Ludvig Ulfsson Nilsson | — | 24,710 |
1 Note: Mr. Kai Ding also holds 600,000 ADSs that will not be Rollover Shares, but shall be tendered in the Offer.
2 Note: TCL Transportation Holdings Limited also holds 146,499 ADSs that will not be Rollover Shares, but shall be tendered in the Offer.
Sch A-1 |
Schedule B
Parent Shares
Shareholder | Parent Shares | |||
Japan NK Investment K.K. | 49,311.5 | |||
IDG-Accel China Capital L.P. | 31,593.4 | |||
IDG-Accel China Capital Investors L.P. | 1,457.5 | |||
Jolmo Solar Capital Ltd. | 1,750.6 | |||
CES Holding Ltd. | 2,593.5 | |||
Jing Kang | 1,231.9 | |||
Bin Shi | 4,784.8 | |||
Sino-Century HX Investments Limited | 1,601.8 | |||
Kai Ding | 3,277.3 | |||
TCL Transportation Holdings Limited | 303.7 | |||
Esteem Venture Investment Limited | 399.8 | |||
Mamaya Investments Ltd | 79.5 | |||
Xanadu Investment Ltd. (HK) | 333.7 | |||
Abdullateef A. AL-Tammar | 209.8 | |||
Development Holding Company Ltd. | 953.4 | |||
Bjoern Ludvig Ulfsson Nilsson | 117.8 | |||
Total: | 100,000 |
Sch B-1 |
Schedule C
Notice Information
[See attached.]
Sch C-1 |