Capital Increase Agreement [Additional Capital Contributor] And ACM Research, Inc. June 2019
Exhibit
10.01
[Additional Capital Contributor]
And
June 2019
[stamp]
[stamp]
Contents
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Article
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Page
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1. Definitions and Interpretations
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2
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2. Current Capital Increase
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4
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3. Payment
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4
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4. Warranties
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5
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5. Completion of Current Capital Increase
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5
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6. Confidentiality
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6
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7. Indemnity
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6
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8. Termination
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7
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9. Notice
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7
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10. Governing Law & Settlement of Dispute
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8
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11. Miscellaneous
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8
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Appendix 1: List of Investors
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9
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This Agreement on Capital Increase of ACM Research (Shanghai), Inc.
(hereafter referred to as “this
Agreement”) is signed by
and between the following parties in Shanghai Municipality on June
12, 2019:
A.
[Additional Capital Contributor] (hereafter
referred to as the “Additional Capital
Contributor”), a [form of entity] (Uniform Social
Credit Code: [●]) established and existing in accordance with
the laws of the People’s Republic of China (hereafter
referred to as “China”, which, for the purpose of
this Agreement, excludes the Hong Kong Special Administrative
Region, the Macau Special Administrative Region and Taiwan Region),
having the registered address at [Address];
B.
ACM Research (Shanghai), Inc. (hereafter
referred to as the “Company” or
“ACM”), a limited liability company incorporated
and effectively existing in accordance with the laws of China
(Uniform Social Credit Code: 91310000774331663A), having the
registered address at Xxxxxxxx 0, 0000 Xxx Xxx Xxxx, Xxxxx
(Shanghai) Pilot Free Trade Zone.
The Additional Capital Contributor and the Company are separately
referred to as “one party” and collectively referred to as
“both
parties”.
WHEREAS:
1.
Until the signing
date of this Agreement, the registered capital of ACM Research,
Inc. is RMB 357,692,307.69, and ACM Research, Inc. (hereafter
referred to as “Current
Shareholder” or “ACMR”) holds 100% of the equities
of the Company;
2.
The Company plans
to further introduce multiple investors, establish an employee
stock ownership vehicle and increase the total final investment to
no more than RMB 500 million. The current registered capital
increase of the Company reaches RMB 14,957,500 (hereafter referred
to as “Additional Registered
Capital”), of which RMB 12,448,461.54 will be jointly
contributed by the investors (as defined below) based on the
amounts and proportions of the Additional Registered Capital they
will contribute as listed in Appendix 2 hereof (hereafter referred
to as “Capital Increase from
Investors”). Relevant employee stock ownership entity
(hereafter referred to as “Employee Stock Ownership Vehicle”)
further confirmed by the Company will sign relevant capital
increase agreement with the Company around the signing date of this
Agreement and contribute the remaining of the Additional Registered
Capital (“Capital Increase
from Employee Stock Ownership Vehicle”, collectively
referred to “Current Investment” together with the
Capital Increase from Investors).
3.
After completion of
the Current Investment, the registered capital of the Company will
be changed to RMB 372,649,807.69, where ACMR will hold 95.99% of
the equities, all investors will hold 3.34% of the equities of the
Company altogether, and the Employee Stock Ownership Vehicle will
hold 0.67% of the equities;
4.
Of the Capital
Increase from Investors, the Additional Capital Contributor will
contribute the additional registered capital of RMB [●],
representing [●]% of the equities of the Company after
completion of the Current Investment (“Current Capital
Increase”).
THEREFORE, both parties have
entered into the following agreement based on the commitments
contained herein and for the purpose of causing them to have the
legal binding force:
1.
Definitions
and Interpretations
1.1
Definitions
The
boldface terms shall have the following meanings in this Agreement,
unless otherwise specified by this Agreement:
2
(a)
“Revised Articles of
Association”: It means
the revised Articles of Association signed by all investors,
including the Current Shareholder, the Employee Stock Ownership
Vehicle and the Additional Capital Contributor, when or after this
Agreement is signed.
(b)
“Working day”: It
means the banking days of China (excluding Saturday, Sunday and
public holidays).
(c)
“China”: It
means the People’s Republic of China, which, for the purpose
of this Agreement, excludes the Hong Kong Special Administrative
Region, the Macau Special Administrative Region and Taiwan
Region.
(d)
“Investors”: It means the investors participating in
the current Capital Increase from Investors listed in Appendix 1
hereof.
(e)
“Capital Increase from
Investors”: It has meaning as
stated in this Agreement;
(f)
“Current Capital
Increase”: It has the
meaning specified under Article 2 of this
Agreement;
(g)
“Capital Increase
Fund”: It has the meaning
specified under Article 3.1 of this Agreement;
(h)
“Completion”: It means completing the Current Capital
Increase in accordance with Article 6;
(i)
“Completion
Date”: It means the date
on which the registration authority issues a new business license
in respect of the Current Investment to the
Company.
(j)
“Encumbrance”: It means any mortgage, guarantee, pledge,
lien, options, restriction, preemptive right as transferee,
preemptive right to buy, third-party interest, other encumbrances
or guarantee interests in whatever form, or any other preemptive
arrangement with similar effect (including without limitation to
transfer of title or title reservation
arrangement).
(k)
“Joint Venture
Contract”: It means the
Joint Venture Contract signed by all investors, including the
Current Shareholder, the Employee Stock Ownership Vehicle and the
Additional Capital Contributor, when or after this Agreement is
signed.
(l)
“Commerce
Authority”: It means the
Ministry of Commerce of China or local organs it
authorizes;
(m)
“Project
Documents”: It means this
Agreement and revision or supplement from time to time, the Joint
Venture Contract and the Revised Articles of
Association;
(n)
“Laws of
China”: It means laws,
regulations, ordinances and judicial interpretations officially
promulgated and published by legislative organs, administrative
organs and judicial organs of China at various levels. For the
purpose of this Agreement, they shall not include laws,
regulations, ordinances, judicial interpretations and legal
precedents of the Hong Kong Special Administrative Region, the
Macao Special Administrative Region and Taiwan
Region;
(o)
“Renminbi” or “RMB”: It means the Chinese legal
tender;
(p)
“Registration
Authority”: It means the
State Administration for Market Supervision or local organs it
authorizes.
1.2
Interpretations
(a)
The
heading of every article is only intended for convenience and shall
not affect the interpretation of this Agreement.
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(b)
Unless
otherwise required in the context, if the occurrence time of any
right or obligation hereunder doesn’t coincide with a working
day, such right or obligation shall be extended to next working day
after the day for exercise or performance.
(c)
Time
means the Beijing time of China.
(d)
When
used in this Agreement, the term “under this Agreement”
and any other term having approximate meaning shall mean this
Agreement as a whole, instead of any concrete article hereof.
Unless explicitly specified herein, the term
“including” shall be understood as “including
without limitation to”, regardless of whether “without
limitation to” follows the term.
(e)
The
quotation of this Agreement shall include this Agreement as well as
revision, change, supplement, replacement and/or restatement made
in whatever form from time to time. Unless otherwise specified in
the context hereof, any quotation of chapter, paragraph, article
and article shall refer to such part of this
Agreement.
2.
Current
Capital Increase
2.1
Both parties agree
that the Additional Capital Contributor will contribute the
additional registered capital of RMB [●], representing
[●]%
of the equities of the Company after completion of the Current
Capital Increase, in cash at a price of RMB13 for per XXX 0 of the
registered capital.
2.2
The aforesaid
additional registered capital contributed by the Additional Capital
Contributor shall not contain any Encumbrance.
3.
Payment
3.1
Capital increase
fund
For the
additional registered capital RMB [portion of the Additional
Registered Capital subscribed by the Additional Capital
Contributor] of the Company the Additional Capital Contributor will
contribute, the total price payable by the Additional Capital
Contributor will be XXX [00 * portion of the Additional Registered
Capital subscribed by the Additional Capital Contributor]
(“Capital Increase
Fund”), where RMB [portion of the Additional
Registered Capital subscribed by the Additional Capital
Contributor] will be included in the registered capital of the
Company, and the remaining will be included in the capital reserve
of the Company.
3.2
Payment
The
Additional Capital Contributor shall pay the Capital Increase Fund
of XXX [00 * portion of the Additional Registered Capital
subscribed by the Additional Capital Contributor] in full amount by
telegraphic transfer to the account designated by the Company after
all the conditions stated in Article 3.3 below are satisfied and no
later than July 5, 2019.
Where
the Additional Capital Contributor fails to pay the Capital
Increase Fund in full amount and on schedule before the expiration
of the period agreed above in this article, the Company shall have
the right to require the Additional Capital Contributor pay 25% of
the total Capital Increase Fund stipulated in Article 3.1 as a
liquidated damage to the Company. In addition to requiring the
Additional Capital Contributor bear the liability for breach in
accordance with the preceding sentence, the Company shall, in this
case, also be entitled to revoke this Agreement after notifying the
Additional Capital Contributor in writing.
3.3
The Additional
Capital Contributor shall pay the Capital Increase Fund in
accordance with Article 3.2 after the following conditions
(“Conditions”)
are satisfied:
(a)
Duly
sign and deliver the Project Documents;
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(b)
The
Additional Capital Contributor has obtained all necessary internal
and external approvals in regard of the Current Capital
Increase;
(c)
The
Current Shareholder of the Company has issued a shareholder’s
resolution approving the Current Capital Increase and waived in
writing the preemptive right to contribute the Current Capital
Increase;
(d)
The
Company has completed the change registration procedure for the
Current Capital Increase with the Commerce Authority.
4.
Warranties
4.1
The Company
warrants the following to the Additional Capital
Contributor:
(a)
The
Company is legally incorporated and effectively existing in
accordance with the laws of China;
(b)
The
Company has obtained the full power, right and authorization
required to sign, deliver and perform this Agreement;
(c)
The
signing, delivery and performance of this Agreement will not
violate any article of applicable laws, regulations, ordinances or
material contractual documents binding upon the Company;
and
(d)
There
is not any Encumbrance on the equities the Additional Capital
Contributor will obtain in virtue of this transaction.
4.2
The Additional
Capital Contributor warrants the following to the
Company:
(a)
The
Additional Capital Contributor is legally incorporated and
effectively existing in accordance with the laws of the
People’s Republic of China;
(b)
The
Additional Capital Contributor has obtained the full power, right
and authorization required to sign, deliver and perform this
Agreement;
(c)
The
signing, delivery and performance of this Agreement will not
violate any article of applicable laws, regulations, ordinances or
material contractual documents binding upon the Additional Capital
Contributor; and
(d)
The
Additional Capital Contributor has prepared sufficient funds for
the Current Capital Increase and the fund source is
legitimate.
5.
Completion
of Current Capital Increase
5.1
The
Company shall complete all government approval and registration
procedures for the Current Capital Increase, including industrial
and commercial change registration pertaining to the Current
Capital Increase, no later than July 31, 2019 after the Additional
Capital Contributor pays the Capital Increase Fund and completes
the capital verification procedure for the Current Capital Increase
(relevant capital verification procedure shall be performed by an
eligible third-party accounting firm).
Where
the Company fails to complete relevant change registration
pertaining to the Current Capital Increase as stated in Article 5.1
on account of any reason attributable to itself after the three
(3)-month period expires following the Additional Capital
Contributor pays the Capital Increase Fund in full amount in
accordance with Article 3.2, the Additional Capital Contributor
shall have the right to revoke this Agreement after notifying the
Company in writing. In this event, the Company shall refund the
Capital Increase Fund in full amount actually paid by the
Additional Capital Contributor to the Additional Capital
Contributor.
To
avoid any ambiguity, where the Company fails to complete relevant
change registration pertaining to the Current Capital Increase as
stated in Article 5.1 on account of any reason not attributable to
itself (including without limitation to any event that is
attributable to the Current Shareholder of the Company, the
Additional Capital Contributor, or any other investor or any
relevant approval, registration or filing organ) after the three
(3)-month period expires following the Additional Capital
Contributor pays the Capital Increase Fund in full amount in
accordance with Article 3.2, the Additional Capital Contributor
shall not have the right to require the revocation of this
Agreement in accordance with the preceding sentence.
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5.2
Completion
of Current Capital Increase shall be subject to the Company’s
acquisition of the business license after change that reflects the
Current Capital Increase.
As
of the Completion Date of Current Capital Increase, the Additional
Capital Contributor shall enjoy relevant rights and bear relevant
obligations as a Company shareholder based on the ratio of the
registered capital it has contributed in accordance with the Laws
of China and the Revised Articles of Association.
6.
Confidentiality
6.1
Either
party hereto shall strictly keep confidential and not disclose or
use any information pertaining to the following affairs contained
hereunder or acquired or obtained out of the negotiation and/or
signing of this Agreement:
(a)
The
existence of this Agreement and its articles;
(b)
Negotiation
relating to this Agreement; or
(c)
Business
activities of one party hereto or any of its related
parties.
6.2
Nevertheless,
Article 6 here shall not prohibit the disclosure or use of any
information to the following extent when any of the following
circumstances is true:
(a)
Disclosure
or use required by applicable laws, any rules of the stock exchange
where the shares of either party are listed or any government
organ;
(b)
Disclosure
or use required for any legal procedure arising out of this
Agreement or any other agreement signed hereunder or in accordance
with this Agreement, or disclosure that is related to tax affairs
of the disclosing party and made to the tax authority;
(c)
Disclosure
that is made to executives, directors, employees, lawyers,
accountants and financial advisors of either party who have the
need to know such information for the purpose of achieving the
transaction purpose proposed by this Agreement or any agreement
signed in accordance with this Agreement as well as other agents or
representatives (“representatives”), provided that such
representatives undertake to comply with Article 6.1 herein, as if
they were a party hereto;
(d)
Such
information is available from the public domain (except a default
on the confidentiality agreement (if any) or this Agreement);
or
(e)
Other
parties agree with the disclosure or use in writing
beforehand.
7.
Indemnity
Where
either party violates any article hereunder, the defaulting party
shall be obligated to indemnify the loss of the other party arising
out of such default, and the damage indemnity will not affect the
other rights of the innocent party hereunder.
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8.
Termination
8.1
8.1 When any of the following events occurs, this
Agreement can be terminated and the transaction proposed hereunder
can be waived:
(a)
Either
party commits a substantive default on this Agreement and the
innocent party sends a written notice to the defaulting party;
or
(b)
Both
parties agree in writing to terminate this Agreement.
8.2
Effect
of termination
Except
for the circumstance stated in Article 8.3 below, this Agreement
will no longer keep in effect should it be terminated in accordance
with the provision of Article 8.1 or applicable law. Nevertheless,
either party shall not be relieved of any liability arising or
incurred out of its default hereunder or untrue presentation made
hereunder, and such termination shall not be regarded as a waiver
of any remedy available (including actual performance, if
available) against such default or untrue
presentation.
8.3
Continuation
of effect
Articles
6, 7, 8, 9 and 10 of this Agreement shall continue to keep in
effect after the termination of this Agreement.
9.
Notice
9.1
When
sending a notice under or in relation to this Agreement, either
party hereto shall send it in writing to the following address or
email address of the other party (or any other address or email
address of the other party indicated through similar
notice):
[Additional Capital Contributor]
Address:
Email:
Attention:
Address:
Xxxxxxxx 0, 0000 Xxx Xxx Xxxx, Xxxxxx New District, Shanghai
Municipality
Email:xxxxxxx.xxx@xxxxxxx.xxx
Attention:
Xxx Xxxxxxx
9.2
Any
notice shall be considered as delivered within seven (7) working
days after posted to the aforesaid address of the recipient,
provided it is delivered via the international generally accepted
express delivery service. If it is sent by fax or email, it shall
be considered as delivered on the first working day after the
sending date, but the notice shall be immediately delivered to the
recipient for confirmation with the next day delivery service of
the generally accepted express delivery company.
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10.
Governing
Law & Settlement of Dispute
10.1
The
execution, validity, interpretation, performance and settlement of
disputes with respect to this Agreement shall be governed by the
Laws of China.
10.2
The
default, termination or invalidity with respect to this Agreement,
or any dispute arising out of or in connection with this Agreement
shall be submitted to Shanghai International Arbitration Center for
arbitration in accordance with then effective arbitration rules of
the Center in Shanghai, and the arbitration language is Chinese.
The arbitration ruling made by the arbitration court shall be final
and legally binding upon both parties hereto.
11.
Miscellaneous
11.1
Validation
This
Agreement shall come into effect as of the execution by both
parties.
11.2
Expenses
Unless
otherwise specified herein, both parties hereto shall assume
respective legal and other expenses incurred to prepare, negotiate
and conclude this Agreement and other Project
Documents.
11.3
Modification
Unless
otherwise specified hereunder, the revision, modification, waiver,
revocation or termination of this Agreement shall be made by both
parties by signing a written agreement.
11.4
Assignment
Without
the written consent from the other party, neither party shall
transfer any of its rights or obligations under this
Agreement.
11.5
Severability
Where
any provision of this Agreement is declared illegal, invalid or
unenforceable in whole or in part under applicable laws, such
provision or part shall, to such extent, not be considered as part
of this Agreement, and not affect the legality, validity and
enforceability of the remaining part of this Agreement. Both
parties shall negotiate with one another to replace the provision
regarded as deleted with a provision that is legitimate, valid,
acceptable and the most closest to the initial purpose of both
parties under this Agreement.
11.6
Waiver
Any
party’s failure to exercise, or delay in the exercise of, any
right, power or privilege under this Agreement shall not be
regarded as a waiver of such right, power or privilege, while the
single or partial exercise of any right, power or privilege shall
not hinder the exercise of any other right, power or
privilege.
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11.7
Language
and counterparts
This
Agreement is made in Chinese in four (4) counterparts. Either party
holds one (1) original, and the other originals are used for
approval, filing and registration.
(No text below)
9
Appendix 1: List of Investors
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Investor’s Name
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Percentage of additional registered capital
contributed
(RMB)
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Corresponding equity ratio after completion of Current
Investment
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Jiaxing Haitong Xuchu Equity Investment Fund Partners (Limited
Partnership)
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2,307,692.31
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0.619%
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Shanghai GP Lingang Hi-tech Fund Partnership (Limited
Partnership)
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1,923,076.92
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0.516%
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Wuxi Taihu Guolian Emerging Growth Industry Investment Enterprises
(Limited Partnership)
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1,923,076.92
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0.516%
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Hai Feng Investment Holding Limited
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1,538,461.54
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0.413%
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Xinwei (Shanghai) Management Consulting Partners (Limited
Partnership)
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4,756,153.85
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1.276%
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Total
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12,448,461.54
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3.34%
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[This page has no text and is the signing page for the Capital
Increase Agreement of ACM Research, Inc.]
This Agreement is signed by the duly authorized representatives of
both parties on the date indicated on the first page of this
Agreement.
[Additional Capital Contributor] (Stamp)
[stamp]
Signature: [handwritten: ]
Name:
Title: Legal Representative or Authorized
Representative
11
[This page has no text and is the signing page for the Capital
Increase Agreement of ACM Research, Inc.]
This Agreement is signed by the duly authorized representatives of
both parties on the date indicated on the first page of this
Agreement.
ACM Research, Inc. (Stamp)
[stamp]
Signature: [handwritten: ]
Name: XXX XXXX
Title: Legal Representative
[stamp:]
[stamp:]
12
