AMENDMENT TO SERIES A-1 SENIOR PREFERRED SHARE PURCHASE AGREEMENT
Exhibit 4.10
EXECUTION VERSION
AMENDMENT TO SERIES A-1 SENIOR PREFERRED SHARE PURCHASE
AGREEMENT
AGREEMENT
THIS AMENDMENT TO SERIES A-1 SENIOR PREFERRED SHARE PURCHASE AGREEMENT (this “Amendment”) is
made as of May 6, 2011, by and among (i) NOBAO RENEWABLE ENERGY HOLDINGS LIMITED, an exempted
company incorporated with limited liability under the Laws of the Cayman Islands (the “Company”),
(ii) SLP NOBLE HOLDINGS LTD., an exempted company incorporated with limited liability under the
Laws of the Cayman Islands (the “Investor”), (iii) XXXX XXXX XXX, a citizen of Hong Kong with the
Hong Kong passport No. of XX0000000 (“Xx. Xxxx Xxxx Xxx”) and XXX XXXX INVESTMENTS LIMITED, a
company duly organized and validly existing under the Laws of the British Virgin Islands and wholly
owned by Xx. Xxxx Xxxx Xxx (“Xxx Xxxx” and, together with Xx. Xxxx Xxxx Xxx, the “Founders”), (iv)
NUOXIN ENERGY TECHNOLOGY (SHANGHAI) CO., LTD., a wholly foreign owned enterprise duly organized and
validly existing under the Laws of the PRC (“Shanghai Nuoxin”) and (v) JIANGXI NOBAO ELECTRONICS
CO., LTD., a wholly foreign owned enterprise duly organized and validly existing under the Laws of
the PRC (“Jiangxi Nobao”). Each of the Company, the Investor, the Founders, Shanghai Nuoxin and
Jiangxi Nobao shall be referred to individually as a “Party” and collectively as the “Parties”.
Capitalized terms used and not defined herein shall have the meanings assigned to such terms in the
Purchase Agreement (as defined below).
WHEREAS, the Parties are party to that certain Series A-1 Senior Preferred Share Purchase
Agreement, dated October 16, 2010 (the “Purchase Agreement”), pursuant to which the Investor holds
its Series A-1 Third Tranche Option to acquire the Series A-1 Third Tranche Option Shares pursuant
to the terms thereof.
WHEREAS, the Parties desire to enter into this Amendment in order to amend the terms of the
Series A-1 Third Tranche Option to provide that (a) the Investor’s Series A-1 Third Tranche Option
may be exercised in the manner set forth in this Amendment and that (b) upon any such exercise,
such Series A-1 Third Tranche Option held by the Investor shall be exchanged (any such an exchange,
an “Exchange”) for an amount of Series A-1 Preferred Shares or Ordinary Shares, as applicable, of
the Company equal to the Option Value.
WHEREAS, the Parties intend that this Amendment and any Exchange shall each constitute a
“recapitalization” within the meaning of Section 368(a)(1)(E) of the Code.
NOW, THEREFORE, the Parties intending to be legally bound and in consideration of the mutual
promises set forth herein, hereby agree as follows:
THE AMENDMENTS
| 1. | Section 2.2(iv) of the Purchase Agreement is hereby amended and restated in its entirety to read as follows: |
“(iv) Cashless Exercise of Series A-1 Third Tranche Option Upon
Liquidation Event. As an alternative to paying the aggregate Per
Share Subscription Price in cash for any of the Series A-1 Third Tranche
Option Shares elected to be purchased hereunder by the Investor, the
Investor may (but need not), if the exercise of such option right occurs
contemporaneously with a Liquidation Event, instead contribute all or
part of the share purchase rights represented by the Series A-1 Third
Tranche Option (but only up to the pro rata amount of equity interests to
be sold or otherwise transferred by the Investor in relation to such
Liquidation Event) by surrendering any remaining amount of purchase
rights related to the Series A-1 Third Tranche Option to the Company
(which purchase rights shall each be valued at the difference between the
Fair Market Value of the Series A-1 Senior Preferred Shares and the Per
Share Subscription Price set forth in Section 2.2(i) above (as
adjusted for share splits, combinations, recapitalization,
reclassifications and similar transactions, if any) (such price
differential, the “Option Value”)) (the foregoing is referred to herein
as “Cashless Exercise”). Immediately prior to a Liquidation Event, the
Investor shall be deemed to have elected to contribute its purchase
rights to acquire Series A-1 Preferred Shares in exchange for Series A-1
Preferred Shares in lieu of a cash payment and to have notified the
Company of the same (i.e., to Cashless Exercise) to the maximum extent
permitted hereunder (and, notwithstanding Section 2.2(iii), no
notice shall be required to be delivered by the Investor in respect of
the exercise of its rights under Section 2.2(iii) above);
provided, however, at any time prior to the consummation
of any such Liquidation Event, the Investor may notify the Company in
writing that it elects to acquire the applicable Series A-1 Third Tranche
Option Shares for cash (i.e., to not Cashless Exercise).”
| 2. | The following new provisions shall be added as Sections 2.2(v), (vi) and (vii) of the Purchase Agreement: |
“(v) Cashless Exercise of Series A-1 Third Tranche Option Upon IPO
Closing. At any time on or before July 15, 2011, upon the closing of the Company’s initial public offering
as contemplated by Section 2.2(iii) above (the closing of such
initial public offering, the “IPO Closing”), rather than paying the
aggregate Per Share Subscription Price in cash for any of the Series A-1
Third Tranche Option Shares subject to purchase hereunder by the
Investor, the Investor may (but need not) instead contribute all the
share purchase rights represented by the Series A-1 Third Tranche Option
by surrendering all of its share purchase rights to acquire Series A-1
Preferred Shares to the Company (which purchase rights shall each be
valued at the Option Value) (i.e., the Investor may Cashless Exercise).
Notwithstanding the foregoing, immediately prior to the IPO Closing,
unless the Investor has notified the Company in writing of its intention
to not Cashless Exercise upon the IPO Closing at least two days prior to
the Company’s commencement of investor road show activities for the
initial public offering (it being understood and agreed that the Company
shall notify the Investor at least three days prior to the Company’s
commencement of such activities of the date upon which such activities
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are to commence), the Investor shall be deemed to have Cashless Exercised
its Series A-1 Third Tranche Option (and, notwithstanding Section
2.2(iii), no notice shall be required to be delivered by the Investor
in respect of the exercise of its rights under Section 2.2(iii)
above). If the Investor elects, or is deemed to have elected, to
Cashless Exercise in connection with the IPO Closing, on the date of the
IPO Closing, the Investor shall surrender all of its purchase rights to
acquire Series A-1 Preferred Shares represented by the Series A-1 Third
Tranche Option to the Company in exchange for Series A-1 Preferred Shares
(if the Series A-1 Preferred Shares will not convert into Ordinary Shares
immediately following the IPO Closing) or Ordinary Shares (if the Series A-1 Preferred Shares will convert into Ordinary Shares immediately
following the IPO Closing) as determined pursuant to Section
2.2(vi) hereof in lieu of a cash payment of $70 million (or such
lesser amount if the Investor has previously exercised any part of its
Series A-1 Third Tranche Option prior to the IPO Closing).
Notwithstanding anything to the contrary in this Section 2.2(v),
in the event that the IPO Closing has not occurred by
July 15, 2011, the Investor shall only have the right to
exercise the Series A-1 Third Tranche Option in accordance with
Section 2.2(iii) or Section 2.2(iv) hereof, as applicable.
(vi) Contemporaneously with any Cashless Exercise that occurs pursuant to
Section 2.2(iv) or (v), the Company shall (x) withhold
and not issue to the Investor a number of Series A-1 Senior Preferred
Shares equal to the aggregate Per Share Subscription Price payable for
such Series A-1 Third Tranche Option Shares in respect of such applicable
amount Series A-1 Third Tranche Options being exercised (and such Series
A-1 Third Tranche Option Shares not being so issued shall no longer be
issuable under the terms of this Agreement), (y) cancel any purchase
rights represented by the Series A-1 Third Tranche Option surrendered
pursuant to Section 2.2(iv) or (v), as applicable, and
(z) issue to the Investor an amount of Series A-1 Preferred Shares or, in
the event of an IPO Closing upon which the Series A-1 Preferred Shares
will convert into Ordinary Shares, Ordinary Shares equal to (1) the
Option Value of each purchase right surrendered by the Investor
multiplied by (2) the number of purchase rights surrendered by
the Investor divided by (3) the Fair Market Value of the Series
A-1 Senior
Preferred Shares to which such purchase rights related (without taking
into account any fractional share). By way of example only, if the
Investor surrendered 32,307,195 purchase rights represented by the Series
A-1 Third Tranche Option (i.e., 100% of such purchase rights
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existing as of the date hereof) to the Company at a time when the Fair Market Value
of the Series A-1 Preferred Shares was $3.3333 per share, the Company
would issue to the Investor 11,306,985 Series A-1 Preferred Shares (i.e.,
(x) $3.3333 minus $2.1667 multiplied by (y) 32,307,195
divided by (z) $3.3333).
(vii) Notwithstanding anything to the contrary contained in this
Agreement, until July 15, 2011, the Investor shall not be entitled to
exercise its Series A-1 Third Tranche Option other than as provided in
Sections 2.2(iv) or (v) above. For the avoidance of
doubt, if the IPO Closing occurs before July 15, 2011 and the Series A-1
Third Tranche Option is not exercised in accordance with Section
2.2(iv) or (v) above, the Series A-1 Third Tranche Option
shall expire and be deemed to have forfeited in accordance with
Section 2.2(iii) above.”
| 3. | The definition of “Fair Market Value” in Schedule 1 to the Purchase Agreement is hereby amended and restated in its entirety to read as follows: |
“‘Fair Market Value’ of any Ordinary Share, Series A Preferred Shares or
the Series A-1 Preferred Shares means the fair market value of such shares
as determined in good faith by the Board; provided,
however, that any Party shall have the right to challenge any
determination by the Board of Fair Market Value, in which case the
determination of Fair Market Value shall be made by an independent
appraiser selected jointly by the Board and the challenging Party. Should
such Fair Market Value made by an independent appraiser differ from that
made by the Board, the Fair Market Value made by an independent appraiser
shall form the value of such shares. The cost of such appraisal shall be
borne by the challenging Party if the independent appraiser determines
that the Fair Market Value of such shares is less than that determined by
the Board by a factor of more than 5%. The cost of such appraisal shall be
borne by the Company if the independent appraiser determines that the Fair
Market Value of such shares is equal to at least 95% of the Fair Market
Value determined by the Board. Notwithstanding anything to the contrary
in the foregoing, in the event that the determination of Fair Market Value
is being made in connection with a Cashless Exercise of the Series A-1
Third Tranche Option pursuant to Section 2.2(v) of this Agreement
occurring upon the IPO Closing, the Fair Market Value of any Series A-1
Preferred Shares shall be deemed to be the price upon which the Company’s
Ordinary Shares are being offered to the public (i.e., not taking into
account any underwriters’ fees or other transaction expenses) in
connection with Company’s initial public offering (or a proportionate
price if American Depository Shares are being offered in
connection with Company’s initial public offering in lieu of Ordinary
Shares).”
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OTHER PROVISIONS
| 4. | Exchange. The Parties intend that this Amendment and, if the Exchange occurs, the Exchange shall each constitute a “recapitalization” within the meaning of Section 368(a)(1)(E) of the Code and the Parties shall not file any United States tax returns. Except to the extent any Party is in violation of the foregoing covenant, each Party acknowledges that it has relied on its own advisors (including Tax advisors) in connection with this Amendment and, if the Exchange occurs, the Exchange, and no Party shall have any responsibility or liability to any other Party with respect to the Tax treatment of the Exchange. |
| 5. | Effect of this Amendment. Except as otherwise provided in this Amendment, all terms and conditions of the Purchase Agreement shall remain in full force and effect in accordance with the terms thereof. Each Party hereto consents to each amendment to the Purchase Agreement set forth in this Amendment. Unless the context otherwise requires, any other document or agreement that refers to the Purchase Agreement shall be deemed to refer to the Purchase Agreement, giving effect to this Amendment. |
| 6. | Disclosure. The Investor hereby consents to the disclosure of this Amendment and the arrangements contemplated in this Amendment in the Company’s registration statement for its initial public offering. |
| 7. | Application of Other Provisions of the Purchase Agreement. Without limiting the generality of Section 5 of this Amendment, Sections 9.4 (Governing Law), 9.5 (Counterparts), 9.6 (Titles and Subtitles), 9.11 (Severability), 9.13 (Dispute Resolution), 9.15 (Interpretation), 9.16 (No Waiver) and 9.17 (No Presumption) of the Agreement shall apply mutatis mutandis to this Amendment. |
[Signature Pages to Follow]
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IN WITNESS WHEREOF, the Parties hereto have executed this Amendment as of the date first
written above.
| COMPANY: | NOBAO RENEWABLE ENERGY HOLDINGS LTD. |
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| By: | /s/ Xxxx Xxxx Xxx | |||
| Name: | Xxxx Xxxx Xxx | |||
| Title: | Director | |||
[Signature Page to Amendment to Series A-1 Senior Preferred Share Purchase Agreement]
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment as of the date first
written above.
| INVESTOR: | SLP NOBLE HOLDINGS LTD. | |||||
| By: Name: |
/s/ Xxxxx X. Xxxxxxxx
|
|||||
| Title: | Authorized Signatory | |||||
[Signature Page to Amendment to Series A-1 Senior Preferred Share Purchase Agreement]
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment as of the date first
written above.
| FOUNDERS: | XXX XXXX INVESTMENTS LIMITED | |||||
| By: Name: |
/s/ Xxxx Xxxx Xxx
|
|||||
| Title: | Authorized Signatory | |||||
| XX. XXXX XXXX XXX | ||||||
| /s/ Xxxx Xxxx Xxx | ||||||
| Xxxx Xxxx Xxx | ||||||
[Signature Page to Amendment to Series A-1 Senior Preferred Share Purchase Agreement]
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment as of the date first
written above.
| SHANGHAI NUOXIN: | NUOXIN ENERGY TECHNOLOGY (SHANGHAI) CO., LTD |
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| By: | /s/ Xxxx Xxxx Xxx | |||
| Name: | Xxxx Xxxx Xxx | |||
| Title: | Legal Representative | |||
[Signature Page to Amendment to Series A-1 Senior Preferred Share Purchase Agreement]
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment as of the date first
written above.
| JIANGXI NOBAO: | JIANGXI NOBAO ELECTRONICS CO., LTD |
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| By: | /s/ Xxxx Xxxx Xxx | |||
| Name: | Xxxx Xxxx Xxx | |||
| Title: | Legal Representative | |||
[Signature Page to Amendment to Series A-1 Senior Preferred Share Purchase Agreement]
