Dated July 16, 2010 LE GAGA HOLDINGS LIMITED SHAREHOLDERS’ AGREEMENT
Exhibit 10.11
Dated July 16, 2010
LE GAGA HOLDINGS LIMITED
SHAREHOLDERS’ AGREEMENT
TABLE OF CONTENTS
| 1. | INFORMATION RIGHTS; BOARD REPRESENTATION |
3 | ||||||
| 2. | REGISTRATION RIGHTS |
5 | ||||||
| 3. | RIGHT OF PARTICIPATION |
15 | ||||||
| 4. | TRANSFER RESTRICTIONS |
18 | ||||||
| 5. | ASSIGNMENT AND AMENDMENT |
24 | ||||||
| 6. | CONFIDENTIALITY AND XXX-XXXXXXXXXX |
00 | ||||||
| 0. | PROTECTIVE PROVISIONS |
26 | ||||||
| 8. | USE OF PROCEEDS |
28 | ||||||
| 9. | GENERAL PROVISIONS |
30 |
LE GAGA HOLDINGS LIMITED
SHAREHOLDERS’ AGREEMENT
THIS SHAREHOLDERS’ AGREEMENT (the “Agreement”) is made and entered into as of July 16, 2010 by
and among:
| 1. | Le Gaga Holdings Limited, an exempted company incorporated under the laws of Cayman Islands (the “Company”); | ||
| 2. | China Linong International Limited, a business company incorporated under the laws of the British Virgin Islands (“China Linong”); | ||
| 3. | Land V. Group Limited, a business company incorporated under the laws of the British Virgin Islands (the “BVI Subsidiary”, and collectively with China Linong, the “BVI Subsidiaries”); | ||
| 4. | Land V. Limited, a company incorporated under the laws of Hong Kong (the “HK Subsidiary A”); | ||
| 5. | Hong Kong Linong Limited, a company incorporated under the laws of Hong Kong (the “HK Subsidiary B”, and collectively with the HK Subsidiary A, the “HK Subsidiaries”); | ||
| 6. | Each of the companies listed on EXHIBIT A hereto, each a wholly foreign owned enterprise organized under the laws of PRC (collectively, the “PRC Subsidiaries” and each a “PRC Subsidiary”; and collectively with the BVI Subsidiaries and the HK Subsidiaries, the “Subsidiaries”); | ||
| 7. | Each of the existing shareholders of the Company identified in EXHIBIT B hereto (collectively, the “Existing Shareholders” and each, an “Existing Shareholder”); | ||
| 8. | Natural Scent Limited, a company incorporated under the laws of the British Virgin Islands; | ||
| 9. | Each of the individuals listed on EXHIBIT C hereto (collectively, the “Founders” and each, a “Founder”); | ||
| 10. | Each of the entities listed on EXHIBIT D hereto (collectively, the “Series A Holders” and each, a “Series A Holder”); | ||
| 11. | Each of the entities listed on EXHIBIT E hereto (collectively, the “Series A1 Holders” and each, a “Series A1 Holder”); | ||
| 12. | Each of the entities listed on EXHIBIT F hereto (collectively, the “Series B Holders” and each, a “Series B Holder”); and |
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| 13. | Each of the persons listed on EXHIBIT G hereto (collectively, the “Series B1 Holders” and each, a “Series B1 Holder”). The Series B1 Holders, the Series B Holders, the Series A1 Holders and the Series A Holders are referred to collectively herein as the “Preferred Shareholders” and each individually a “Preferred Shareholder”. |
(the foregoing parties collectively, the “Parties”, and each a “Party”).
RECITALS
| A. | China Linong, the BVI Subsidiary, the HK Subsidiaries, the PRC Subsidiaries, the Existing Shareholders, Natural Scent Limited, the Founders and the Preferred Shareholders entered into an amended and restated shareholders’ agreement relating to China Linong dated January 18, 2010 setting forth certain rights and obligations of the parties thereto (the “Linong Shareholders’ agreements”) | ||
| B. | On July 16, 2010, the holders of the ordinary shares of China Linong exchanged 1,050,000 ordinary shares of China Linong, par value of US$0.001 each, for 1,050,000,000 ordinary shares of the Company, par value of US$0.01 each, on a pro rata basis, as specified in Exhibit B attached hereto. | ||
| C. | On July 16, 2010, the Series A Holder exchanged 215,060 Series A preferred shares of China Linong, par value of US$0.001 each, for 215,060,000 Series A preferred shares of the Company, par value of US$0.01 each (“Series A Shares”) on a pro rata basis, as specified in Exhibit D attached hereto. | ||
| D. | On July 16, 2010, the Series A1 Holder exchanged 80,710 Linong Series A1 preferred shares of China Linong, par value of US$0.001 each, for 80,710,000 Series A1 preferred shares of the Company, par value of US$0.01 each (“Series A1 Shares”) on a pro rata basis, as specified in Exhibit E attached hereto. | ||
| E. | On July 16, 2010, the Series B Holder exchanged 329,100 Linong Series B preferred shares of China Linong, par value of US$0.001 each, for 329,100,000 Series B preferred shares of the Company, par value of US$0.01 each (“Series B Shares”) on a pro rata basis, as specified in Exhibit F attached hereto. | ||
| F. | On July 16, 2010, the Series B1 Holder exchanged 79,127 Linong Series B1 preferred shares of China Linong, par value of US$0.001 each, for 79,217,000 Series B1 preferred shares of the Company, par value of US$0.01 each (“Series B1 Shares”) on a pro rata basis, as specified in Exhibit G attached hereto (this transaction, together with the transactions described in B through E above, the “Share Exchange”). | ||
| G. | In connection with the consummation of the Share Exchange, the parties hereto desire to enter into this Agreement to terminate, supersede and replace in its entirety the Linong Shareholders’ agreements and to waive any and all rights they may have thereunder in exchange for their rights hereunder. |
AGREEMENT
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NOW, THEREFORE, in consideration of the foregoing recitals, the mutual promises hereinafter
set forth, and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
1. INFORMATION RIGHTS; BOARD REPRESENTATION.
1.1 Information and Inspection Rights.
(a) Information Rights. The Company covenants and agrees that, commencing on the date
of this Agreement, for so long as (1) 20% of the Series A Shares together with Series A1 Shares (on
an as converted basis) are outstanding, or (2) 20% of the Series B Shares together with Series B1
Shares (on an as converted basis) are outstanding, the Company will deliver, unless such rights are
waived by each holder of the relevant class of outstanding Preferred Shares, to each holder of the
relevant class of outstanding Preferred Shares:
(i) audited annual consolidated financial statements, within one hundred and twenty (120) days
after the end of each fiscal year, prepared in accordance with the Hong Kong generally accepted
accounting principles (the “Hong Kong GAAP”) or International Financial Reporting Standards
(“IFRS”) and audited by a “Big 4” accounting firm selected by the board of directors of the
Company;
(ii) unaudited monthly consolidated financial statements, within thirty (30) days of the end
of each month, prepared in accordance with the PRC generally accepted accounting principles (the
“PRC GAAP”) or IFRS which shall indicate variances from the annual budget of the Company with
respect to key line items;
(iii) an annual consolidated budget for the following fiscal year, within thirty (30) days
prior to the end of each fiscal year; and
(iv) copies of all documents or other information sent to any shareholder (the above rights,
collectively, the “Information Rights”). All financial statements to be provided pursuant to this
Section 1.1(a) shall include an income statement, a balance sheet and a cash flow statement for the
relevant period and shall be prepared in conformance with Hong Kong GAAP except for item (ii)
above, which shall be prepared in accordance with PRC GAAP.
(b) Inspection Rights. The Company further covenants and agrees that, commencing on
the date of this Agreement, for so long as any Preferred Shares are outstanding, each holder of
Preferred Shares shall have (i) the right to inspect facilities, records and books of the Company
and any of its subsidiaries (including any Subsidiary) at any time during regular working hours on
reasonable prior notice to the Company, and (ii) the right to discuss the business, operations and
conditions of the Company and any of its subsidiaries (including any Subsidiary) with its
directors, officers, employees, accountants, legal counsel and investment bankers (the “Inspection
Rights”). All such Inspection Rights must be exercised in good faith and reasonably.
(c) Termination of Rights. The Information Rights and Inspection Rights shall
terminate upon consummation of a firm underwritten public offering of the ordinary shares, with a
par value of US$0.001 per share, of the Company (the “Ordinary Shares”) in the United States, that
has been registered under the United States Securities Act of 1933, as amended from time to time,
including any successor statutes (the “Securities Act”), with gross proceeds to the Company in
excess of US$70,000,000 (prior to underwriters’ discounts and commissions) and at a pre-public
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offering market capitalization of at least US$300,000,000, or in a similar public offering of the
Ordinary Shares of the Company in another jurisdiction which results in the Ordinary Shares trading
publicly on a recognized regional or national securities exchange; provided that such
offering satisfies the foregoing gross proceeds and pre-public offering market capitalization
requirements (a “Qualified IPO”).
1.2 Board of Directors.
(a) Board Representation. The Company’s Memorandum and Articles of Association, as
amended (the “Memorandum and Articles”) shall provide that the Company’s Board of Directors (the
“Board”) shall consist of an authorized number of no more than seven (7) members, which number of
members may not be increased without the Investors’ prior written consent and shall not be changed
except pursuant to an amendment to the Memorandum and Articles. So long as Sequoia Capital China I,
L.P. and its affiliates (“Sequoia”), whether individually or in the aggregate, hold or remain
beneficially interested in at least 20% of the total number of Series A Shares and Series A1 Shares
(in aggregate and on an as-converted basis), Sequoia shall be entitled to exclusively nominate,
appoint, remove and replace one (1) director (the “Sequoia Representative”). In addition, the
Series B Holders shall be entitled to nominate, appoint, remove and replace two (2) directors;
provided that SIG China Investments One, Ltd. and its affiliates (“SIG”) shall have the
sole and irrevocable right to exercise such rights of nomination, appointment, removal and
replacement of one (1) director (the “SIG Representative”), and provided that Pacven Xxxxxx
Ventures VI, L.P. and its affiliates (“Xxxxxx”) shall have the sole and irrevocable right to
exercise such rights of nomination, appointment, removal and replacement of one (1) director (the
“Xxxxxx Representative”, and together with the SIG Representative and Sequoia Representative, the
“Investor Representatives” and each an “Investor Representative”), so long as SIG and Xxxxxx hold
or remain beneficially interested in at least 50% or more of their respective original number of
Series B Shares. An Investor Representative shall have the right to appoint alternates or proxies
to attend any meeting of the Board. The holders of Ordinary Shares shall be entitled to nominate,
appoint, remove and replace the remaining four (4) directors; the Existing Shareholders and the
Preferred Shareholders shall vote all their respective Shares to give effect to any such
nomination, appointment, removal or replacement. Upon a Qualified IPO, the SIG Representative and
Xxxxxx Representative shall both resign as directors of the Board.
(b) Director Expenses. The Company shall bear the reasonable cost associated with a
director attending the meetings of the Board, including all reasonable travel and lodging expenses,
provided that the prior approval of the Company be obtained before incurrence in excess of
US$5,000.
(c) Compensation Committee of the Board. The Board shall establish a compensation
committee of the Board (the “Compensation Committee”) comprising three (3) members to manage
certain compensation affairs of the Company, including implementing salary and equity guidelines
for the Company, approving compensation packages, severance agreements and employment agreements
for all senior managers of the Company and the Subsidiaries (collectively, the “Group Companies”
and each a “Group Company”) (including but not limited to the chief executive officer and the chief
financial officer of each Group Company) as well as administering the Company’s employee equity
incentive plans; provided that, subject to Section 1.2(a), (i) holders of Ordinary
Shares shall be entitled to appoint one (1) director to sit on the Compensation Committee, (ii)
Series A Holders shall be entitled to appoint one (1) director to sit on the Compensation
Committee, (iii) subject to sub-Section 1.2(d)(iv), Series B Holders shall be entitled to appoint
one (1)
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director to sit on the Compensation Committee, and (iv) any allocation of shares under the
Company’s employee equity incentive plans shall be subject to the Compensation Committee’s prior
approval.
(d) Audit Committee of the Board. The Board shall establish an audit committee of
the Board (the “Audit Committee”) comprising three (3) members to establish a framework for and
monitor financial accountability, and to review and supervise the financial reporting process and
internal control procedures of the Company; provided that, subject to Section 1.2(a), (i)
holders of Ordinary Shares shall be entitled to appoint one (1) director to sit on the Audit
Committee, (ii) Series A Holders shall be entitled to appoint one (1) director to sit on the Audit
Committee, (iii) Series B Holders shall be entitled to appoint one (1) director to sit on the Audit
Committee, and (iv) the director appointed by the Series B Holders to sit on the Compensation
Committee will not be elected to sit on the Audit Committee, and vice versa.
(e) Board Observer. Each Investor may appoint one non-voting observer who may attend
meetings of the Board (whether in person, by telephone or otherwise). Such right shall terminate
upon a Qualified IPO. Any such non-voting observer shall not have the right to vote on matters
tabled before the Board.
1.3 Subsidiaries. Without the prior written consent of Sequoia Capital China I, L.P.,
no Subsidiary may have a board of directors consisting of more than five (5) members. So long as
Sequoia Capital China I, L.P. and its affiliates, whether individually or in the aggregate, hold or
remain beneficially interested in at least 20% of the total Series A Shares and Series A1 Shares
(in aggregate and on an as-converted basis), Sequoia Capital China I, L.P. shall be entitled to
appoint and remove one (1) director of the board of director of each Major Subsidiary (as defined
in the Purchase Agreement (as defined hereinafter)), if applicable.
2. REGISTRATION RIGHTS.
2.1 Applicability of Rights. The holders of Preferred Shares shall be entitled to the
following rights with respect to any potential public offering of the Company’s Ordinary Shares in
the United States.
2.2 Definitions. For purposes of this Section 2:
(a) Registration. The terms “register,” “registered,” and “registration” refer to a
registration effected by preparing and filing a registration statement which is in a form which
complies with, and is declared effective by the SEC (as defined below) in accordance with, the
Securities Act.
(b) Registrable Securities. The term “Registrable Securities” shall mean: (1) any
Ordinary Shares of the Company issued or to be issued pursuant to conversion of any Preferred
Shares, (2) any Ordinary Shares of the Company issued (or issuable upon the conversion or exercise
of any warrant, right or other security which is issued) as a dividend or other distribution with
respect to, or in exchange for or in replacement of, any Preferred Shares, and (3) any other
Ordinary Shares of the Company owned or hereafter acquired by a holder of Preferred Shares.
Notwithstanding the foregoing, “Registrable Securities” shall exclude any Registrable Securities
sold by a person in a transaction in which rights under this Section 2 are not assigned in
accordance with this Agreement, and any Registrable Securities which are sold in a registered
public offering under the Securities Act or analogous statute of another jurisdiction, or sold
pursuant to Rule 144 promulgated under the Securities Act or analogous rule of another
jurisdiction.
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(c) Registrable Securities Then Outstanding. The number of shares of “Registrable
Securities then outstanding” shall mean the number of Ordinary Shares of the Company that are
Registrable Securities and are then issued and outstanding, issuable upon conversion of Preferred
Shares then issued and outstanding or issuable upon conversion or exercise of any warrant, right or
other security then outstanding.
(d) Holder. For purposes of this Section 2, the term “Holder” shall mean any person
owning or having the rights to acquire Registrable Securities or any permitted assignee of record
of such Registrable Securities to whom rights under this Section 2 have been duly assigned in
accordance with this Agreement.
(e) Form F-3. The term “Form F-3” shall mean such respective form under the Securities
Act as is in effect on the date hereof or any successor registration form under the Securities Act
subsequently adopted by the SEC which permits inclusion or incorporation of substantial information
by reference to other documents filed by the Company with the SEC.
(f) SEC. The term “SEC” or “Commission” shall mean the U.S. Securities and Exchange
Commission.
(g) Registration Expenses. The term “Registration Expenses” shall mean all expenses
incurred by the Company in complying with Sections 2.3, 2.4 and 2.5 hereof, including, without
limitation, all registration and filing fees, printing expenses, fees, and disbursements of counsel
for the Company, reasonable fees and disbursements of counsel for the Holders, Blue Sky fees and
expenses and the expense of any special audits incident to or required by any such registration
(but excluding the compensation of regular employees of the Company which shall be paid in any
event by the Company).
(h) Selling Expenses. The term “Selling Expenses” shall mean all underwriting
discounts and selling commissions applicable to the sale of Registrable Securities pursuant to
Sections 2.3, 2.4 and 2.5 hereof.
(i) Exchange Act. The term “Exchange Act” shall mean the Securities Exchange Act of
1934, as amended, and any successor statute.
2.3 Demand Registration.
(a) Request by Holders. If the Company shall, at any time after the earlier of (i)
two (2) years after the date of this Agreement or (ii) six (6) months following a Qualified IPO,
receive a written request from Series B Holders of at least 50% of the Series B Shares then
outstanding, or the Holders of at least 50% of the Registrable Securities then outstanding, that
the Company file a registration statement under the Securities Act covering the registration of
such Holders’ Registrable Securities pursuant to this Section 2.3, then the Company shall, within
ten (10) business days of the receipt of such written request, give written notice of such request
(“Request Notice”) to all Holders, and use its best efforts to effect, as soon as practicable, the
registration under the Securities Act of all Registrable Securities that the Holders request to be
registered and included in such registration by written notice given by such Holders to the Company
within twenty (20) days after receipt of the Request Notice, subject only to the limitations of
this Section 2.3; provided that the Company shall not be obligated to effect any such
registration if the Company has, within the six (6) month period preceding the date of such
request, already effected a registration under the Securities
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Act pursuant to this Section 2.3 or Section 2.5 or in which the Holders had an opportunity to
participate pursuant to the provisions of Section 2.4, other than a registration from which the
Registrable Securities of the Holders have been excluded (with respect to all or any portion of the
Registrable Securities the Holders requested be included in such registration) pursuant to the
provisions of Section 2.4(a).
(b) Underwriting. If the Holders initiating the registration request under this
Section 2.3 (the “Initiating Holders”) intend to distribute the Registrable Securities covered by
their request by means of an underwriting, then they shall so advise the Company as a part of their
request made pursuant to this Section 2.3 and the Company shall include such information in the
Request Notice. In such event, the right of any Holder to include its Registrable Securities in
such registration shall be conditioned upon such Holder’s participation in such underwriting and
the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise
mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent
provided herein. All Holders proposing to distribute their securities through such underwriting
shall enter into an underwriting agreement in customary form with the managing underwriter or
underwriters selected for such underwriting by the Holders of a majority of the Registrable
Securities being registered and reasonably acceptable to the Company. Notwithstanding any other
provision of this Section 2.3, if the underwriter(s) advise(s) the Company in writing that
marketing factors require a limitation of the number of securities to be underwritten, then the
Company shall so advise all Holders of Registrable Securities which would otherwise be registered
and underwritten pursuant hereto, and the number of Registrable Securities that may be included in
the underwriting shall be reduced as required by the underwriter(s) and allocated among the Holders
of Registrable Securities on a pro rata basis according to the number of Registrable Securities
then outstanding held by each Holder requesting registration (including the Initiating Holders);
provided, however, that the number of shares of Registrable Securities to be
included in such underwriting and registration shall not be reduced unless all other securities are
first entirely excluded from the underwriting and registration including, without limitation, all
shares that are not Registrable Securities and are held by any other person, including, without
limitation, any person who is an employee, officer or director of the Company or any subsidiary of
the Company; provided further, that at least 25% of shares of Registrable
Securities requested by the Holders to be included in such underwriting and registration shall be
so included. If any Holder disapproves of the terms of any such underwriting, such Holder may elect
to withdraw therefrom by written notice to the Company and the underwriter(s), delivered at least
ten (10) business days prior to the effective date of the registration statement. Any Registrable
Securities excluded or withdrawn from such underwriting shall be excluded and withdrawn from the
registration.
(c) Maximum Number of Demand Registrations. The Company shall not be obligated to
effect more than two (2) demand registrations initiated by any Series B1 Holder and two (2) demand
registrations initiated by the Holders of at least 50% of the Registrable Securities then
outstanding.
(d) Deferral. Notwithstanding the foregoing, if the Company shall furnish to Holders
requesting registration pursuant to this Section 2.3, a certificate signed by the President or
Chief Executive Officer of the Company stating that in the good faith judgment of the Board, it
would be materially detrimental to the Company and its shareholders for such registration statement
to be filed at such time, then the Company shall have the right to defer such filing for a period
of not more than ninety (90) days after receipt of the request of the Initiating Holders;
provided, however, that the Company may not utilize this right more than once in
any twelve (12) month period; provided further, that the Company shall not register
any other of its shares during such twelve (12) month period. A
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demand right shall not be deemed to have been exercised until such deferred registration shall
have been effected.
2.4 Piggyback Registrations.
(a) The Company shall notify all Holders of Registrable Securities in writing at least thirty
(30) days prior to filing any registration statement under the Securities Act for purposes of
effecting a public offering of securities of the Company (including, but not limited to,
registration statements relating to secondary offerings of securities of the Company, but
excluding registration statements relating to any registration under Section 2.3 or Section
2.5 of this Agreement or to any employee benefit plan or a corporate reorganization or other Rule
145 transaction, an offer and sale of debt securities, or a registration on any registration form
that does not permit secondary sales), and shall afford each such Holder an opportunity to include
in such registration statement all or any part of the Registrable Securities then held by such
Holder. Each Holder desiring to include in any such registration statement all or any part of the
Registrable Securities held by it shall within twenty (20) days after receipt of the
above-described notice from the Company, so notify the Company in writing, and in such notice shall
inform the Company of the number of Registrable Securities such Holder wishes to include in such
registration statement. If a Holder decides not to include all of its Registrable Securities in
any registration statement thereafter filed by the Company, such Holder shall nevertheless continue
to have the right to include any Registrable Securities in any subsequent registration statement or
registration statements as may be filed by the Company with respect to offerings of its securities,
all upon the terms and conditions set forth herein.
(b) Underwriting. If a registration statement under which the Company gives notice
under this Section 2.4 is for an underwritten offering, then the Company shall so advise the
Holders of Registrable Securities. In such event, the right of any such Holder’s Registrable
Securities to be included in a registration pursuant to this Section 2.4 shall be conditioned upon
such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable
Securities in the underwriting to the extent provided herein. All Holders proposing to distribute
their Registrable Securities through such underwriting shall enter into an underwriting agreement
in customary form with the managing underwriter or underwriters selected for such underwriting.
Notwithstanding any other provision of this Agreement but subject to Section 2.12, if the managing
underwriter(s) determine(s) in good faith that marketing factors require a limitation of the number
of shares to be underwritten, then the managing underwriter(s) may exclude shares from the
registration and the underwriting, and the number of shares that may be included in the
registration and the underwriting shall be allocated, first, to the Company,
second, to each of the Holders requesting inclusion of their Registrable Securities in such
registration statement on a pro rata basis based on the total number of shares of Registrable
Securities then held by each such Holder, and third, to holders of other securities of the
Company; provided, however, that the right of the underwriter(s) to exclude shares
(including Registrable Securities) from the registration and underwriting as described above shall
be restricted so that (i) except for the case of an initial public offering of the Ordinary Shares
of the Company, the number of Registrable Securities included in any such registration is not
reduced below 25% of the aggregate number of shares of Registrable Securities for which inclusion
has been requested; and (ii) all shares that are not Registrable Securities and are held by any
other person, including, without limitation, any person who is an employee, officer or director of
the Company (or any subsidiary of the Company) shall first be excluded from such registration and
underwriting before any Registrable Securities are so excluded unless otherwise approved by the
majority of the Holders of the Registrable Securities in writing. If any Holder disapproves of the
terms of any such underwriting, such Holder may elect to withdraw therefrom by written notice to
the Company and the underwriter(s), delivered at least ten (10) business days prior to the
effective date of the registration
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statement. Any Registrable Securities excluded or withdrawn from such underwriting shall be
excluded and withdrawn from the registration.
(c) Not Demand Registration. Registration pursuant to this Section 2.4 shall not be
deemed to be a demand registration as described in Section 2.3 above. There shall be no limit on
the number of times the Holders may request registration of Registrable Securities under this
Section 2.4.
2.5 Form F-3 Registration. In case the Company shall receive from (i) any Investor, or
(ii) any Holder or Holders of a majority of all Registrable Securities then outstanding a written
request or requests that the Company effect a registration on Form F-3 and any related
qualification or compliance with respect to all or a part of the Registrable Securities owned by
such Holder or Holders, then the Company will:
(a) Notice. Promptly give written notice of the proposed registration and the Holder’s
or Holders’ request therefor, and any related qualification or compliance, to all other Holders of
Registrable Securities; and
(b) Registration. As soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would permit or facilitate the sale
and distribution of all or such portion of such Holders or Holders’ Registrable Securities as are
specified in such request, together with all or such portion of the Registrable Securities of any
other Holder or Holders joining in such request as are specified in a written request given within
twenty (20) days after the Company provides the notice contemplated by Section 2.5(a);
provided, however, that the Company shall not be obligated to effect any such
registration, qualification or compliance pursuant to this Section 2.5:
(i) if Form F-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled
to inclusion in such registration, propose to sell Registrable Securities and such other securities
(if any) at an aggregate price to the public of less than US$500,000;
(iii) if the Company shall furnish to the Holders a certificate signed by the President or
Chief Executive Officer of the Company stating that in the good faith judgment of the Board of
Directors of the Company, it would be materially detrimental to the Company and its shareholders
for such Form F-3 Registration to be effected at such time, in which event the Company shall have
the right to defer the filing of the Form F-3 registration statement no more than once during any
twelve (12) month period for a period of not more than sixty (60) days after receipt of the request
of the Holder or Holders under this Section 2.5; provided that the Company shall not
register any of its other shares during such sixty (60) day period;
(iv) if the Company has, within the six (6) month period preceding the date of such request,
already effected a registration under the Securities Act other than a registration from which the
Registrable Securities of Holders have been excluded (with respect to all or any portion of the
Registrable Securities the Holders requested be included in such registration) pursuant to the
provisions of Sections 2.3(b) and 2.4(b); or
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(v) in any particular jurisdiction in which the Company would be required to qualify to do
business or to execute a general consent to service of process in effecting such registration,
qualification or compliance.
(c) Not Demand Registration. Form F-3 registrations shall not be deemed to be demand
registrations as described in Section 2.3 above. Except as otherwise provided herein, there shall
be no limit on the number of times the Holders may request registration of Registrable Securities
under this Section 2.5.
(d) Underwriting. If the Holders of Registrable Securities requesting registration
under this Section 2.5 intend to distribute the Registrable Securities covered by their request by
means of an underwriting, the provisions of Section 2.3(b) shall apply to such registration.
2.6 Expenses. All Registration Expenses incurred in connection with any registration
pursuant to Sections 2.3, 2.4 or 2.5 (but excluding Selling Expenses) shall be borne by the
Company. Each Holder participating in a registration pursuant to Sections 2.3, 2.4 or 2.5 shall
bear such Holder’s proportionate share (based on the total number of shares sold in such
registration other than for the account of the Company) of all Selling Expenses or other amounts
payable to underwriter(s) or brokers, in connection with such offering by the Holders.
Notwithstanding the foregoing, the Company shall not be required to pay for any expenses of any
registration proceeding begun pursuant to Section 2.3 if the registration request is subsequently
withdrawn at the request of the Holders of a majority of the Registrable Securities to be
registered, unless the Holders of a majority of the Registrable Securities then outstanding agree
that such registration constitutes the use by the Holders of one (1) demand registration pursuant
to Section 2.3 (in which case such registration shall also constitute the use by all Holders of
Registrable Securities of one (1) such demand registration); provided further,
however, that if at the time of such withdrawal, the Holders have learned of a material
adverse change in the condition, business, or prospects of the Company not known to the Holders at
the time of their request for such registration and have withdrawn their request for registration
with reasonable promptness after learning of such material adverse change, then the Holders shall
not be required to pay any of such expenses and such registration shall not constitute the use of a
demand registration pursuant to Section 2.3.
2.7 Obligations of the Company. Whenever required to effect the registration of any
Registrable Securities under this Agreement the Company shall, as expeditiously as reasonably
possible:
(a) Registration Statement. Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its best efforts to cause such registration
statement to become effective, and, upon the request of the Holders of a majority of the
Registrable Securities registered thereunder, keep such registration statement effective for a
period of up to ninety (90) days or, in the case of Registrable Securities registered under Form
F-3 in accordance with Rule 415 under the Securities Act or a successor rule, until the
distribution contemplated in the registration statement has been completed; provided,
however, that (i) such ninety (90) day period shall be extended for a period of time equal
to the period any Holder refrains from selling any securities included in such registration at the
request of the underwriter(s), and (ii) in the case of any registration of Registrable Securities
on Form F-3 which are intended to be offered on a continuous or delayed basis, such ninety (90) day
period shall be extended, if necessary, to keep the registration statement effective until all such
Registrable Securities are sold.
(b) Amendments and Supplements. Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
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with such registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such registration
statement.
(c) Prospectuses. Furnish to the Holders such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the Securities Act, and
such other documents as they may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by them that are included in such registration.
(d) Blue Sky. Use its best efforts to register and qualify the securities covered by
such registration statement under such other securities or Blue Sky laws of such jurisdictions as
shall be reasonably requested by the Holders; provided that the Company shall not be
required in connection therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions, unless the Company is
already subject to service in such jurisdiction and except as may be required by the Securities
Act.
(e) Underwriting. In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement in usual and customary form, with the
managing underwriter(s) of such offering.
(f) Notification. Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is required to be delivered
under the Securities Act of (i) the issuance of any stop order by the SEC in respect of such
registration statement, or (ii) the happening of any event as a result of which the prospectus
included in such registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of the circumstances then existing.
(g) Opinion and Comfort Letter. Furnish, at the request of any Holder requesting
registration of Registrable Securities, on the date that such Registrable Securities are delivered
to the underwriter(s) for sale, if such securities are being sold through underwriters, or, if such
securities are not being sold through underwriters, on the date that the registration statement
with respect to such securities becomes effective, (i) an opinion, dated as of such date, of the
counsel representing the Company for the purposes of such registration, in form and substance as is
customarily given to underwriters in an underwritten public offering and reasonably satisfactory to
a majority in interest of the Holders requesting registration, addressed to the underwriters, if
any, and (ii) letters dated as of (x) the effective date of the registration statement covering
such Registrable Securities and (y) the closing date of the offering from the independent certified
public accountants of the Company, in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering and reasonably
satisfactory to a majority in interest of the Holders requesting registration, addressed to the
underwriters, if any.
2.8 Furnish Information. It shall be a condition precedent to the obligations of the
Company to take any action pursuant to Sections 2.3, 2.4 or 2.5 that the selling Holders shall
furnish to the Company such information regarding themselves, the Registrable Securities held by
them and the intended method of disposition of such securities as shall be required to timely
effect the Registration of their Registrable Securities.
2.9 Indemnification. In the event any Registrable Securities are included in a
registration statement under Sections 2.3, 2.4 or 2.5:
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(a) By the Company. To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, its partners, officers, directors, legal counsel, any underwriter (as
defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or
underwriter within the meaning of the Securities Act or the Exchange Act, against any losses,
claims, damages, or liabilities (joint or several) to which they may become subject under the
Securities Act, the Exchange Act, or other United States federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based
upon any of the following statements, omissions or violations (collectively a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such
registration statement, including any preliminary prospectus or final prospectus contained therein
or any amendments or supplements thereto;
(ii) the omission or alleged omission to state therein a material fact required to be stated
therein, or necessary to make the statements therein not misleading; or
(iii) any violation or alleged violation by the Company of the Securities Act, the Exchange
Act, any United States federal or state securities law, or any rule or regulation promulgated under
the Securities Act, the Exchange Act, or any United States federal or state securities law in
connection with the offering covered by such registration statement;
and the Company will reimburse each such Holder, its partner, officer, director, legal counsel,
underwriter or controlling person for any legal or other expenses reasonably incurred by them, as
incurred, in connection with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the indemnity agreement contained in this Section
2.9(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the consent of the Company (which consent shall not
be unreasonably withheld), nor shall the Company be liable in any such case for any such loss,
claim, damage, liability or action to the extent that it arises out of or is based upon a Violation
which occurs in reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by such Holder, or any partner, officer, director, legal
counsel, underwriter or controlling person of such Holder.
(b) By Selling Holders. To the extent permitted by law, each selling Holder will, if
Registrable Securities held by Holder are included in the securities as to which such registration
qualifications or compliance is being effected, indemnify and hold harmless the Company, each of
its directors, each of its officers who has signed the registration statement, each person, if any,
who controls the Company within the meaning of the Securities Act, any underwriter and any other
Holder selling securities under such registration statement or any of such other Holder’s partners,
directors, officers, legal counsel or any person who controls such Holder within the meaning of the
Securities Act or the Exchange Act, against any losses, claims, damages or liabilities (joint or
several) to which the Company or any such director, officer, legal counsel, controlling person,
underwriter or other such Holder, partner or director, officer or controlling person of such other
Holder may become subject under the Securities Act, the Exchange Act or other United States federal
or state law, insofar as such losses, claims, damages or liabilities (or actions in respect
thereto) arise out of or are based upon any Violation, in each case to the extent (and only to the
extent) that such Violation occurs in reliance upon and in conformity with written information
furnished by such Holder expressly for use in connection with such registration; and each such
Holder will reimburse any legal or other expenses reasonably incurred by the Company or any such
director, officer, controlling person, underwriter or other Holder, partner, officer, director or
controlling person of such other Holder
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in connection with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the indemnity agreement contained in this Section
2.9(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the consent of the Holder, which consent shall not be
unreasonably withheld; and provided, further, that in no event shall any indemnity
under this Section 2.9(b) exceed the net proceeds received by such Holder in the registered
offering out of which the applicable Violation arises.
(c) Notice. Promptly after receipt by an indemnified party under this Section 2.9 of
notice of the commencement of any action (including any governmental action), such indemnified
party will, if a claim in respect thereof is to be made against any indemnifying party under this
Section 2.9, deliver to the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent the indemnifying
party so desires, jointly with any other indemnifying party similarly noticed, to assume the
defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its own counsel, with the
fees and expenses to be paid by the indemnifying party, if representation of such indemnified party
by the counsel retained by the indemnifying party would be inappropriate due to actual or potential
conflict of interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the indemnifying party within
a reasonable time of the commencement of any such action shall relieve such indemnifying party of
liability to the indemnified party under this Section 2.9 to the extent the indemnifying party is
prejudiced as a result thereof, but the omission to so deliver written notice to the indemnifying
party will not relieve it of any liability that it may have to any indemnified party otherwise than
under this Section 2.9.
(d) Contribution. In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either (i) any indemnified party makes a
claim for indemnification pursuant to this Section 2.9 but it is judicially determined (by the
entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time
to appeal or the denial of the last right of appeal) that such indemnification may not be enforced
in such case notwithstanding the fact that this Section 2.9 provides for indemnification in such
case, or (ii) contribution under the Securities Act may be required on the part of any indemnified
party in circumstances for which indemnification is provided under this Section 2.9; then, and in
each such case, the indemnified party and the indemnifying party will contribute to the aggregate
losses, claims, damages or liabilities to which they may be subject (after contribution from
others) in such proportion so that a Holder (together with its related persons) is responsible for
the portion represented by the percentage that the public offering price of its Registrable
Securities offered by and sold under the registration statement bears to the public offering price
of all securities offered by and sold under such registration statement, and the Company and other
selling Holders are responsible for the remaining portion. The relative fault of the indemnifying
party and of the indemnified party shall be determined by a court of law by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact or the omission to
state a material fact relates to information supplied by the indemnifying party or by the
indemnified party and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission; provided, however,
that, in any such case: (A) no Holder will be required to contribute any amount in excess of the
net proceeds to such Holder from the sale of all such Registrable Securities offered and sold by
such Holder pursuant to such registration statement; and (B) no person or entity guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be
entitled to contribution from any person or entity who was not guilty of such fraudulent
misrepresentation.
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(e) Survival; Consents to Judgments and Settlements. The obligations of the Company
and Holders under this Section 2.9 shall survive the completion of any offering of Registrable
Securities in a registration statement, regardless of the expiration of any statutes of limitation
or extensions of such statutes. No indemnifying party, in the defense of any such claim or
litigation, shall, except with the consent of each indemnified party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from all liability in
respect to such claim or litigation.
2.10 Termination of the Company’s Obligations. The Company’s obligations under
Sections 2.3, 2.4 and 2.5 with respect to any Registrable Securities proposed to be sold by a
Holder in a registration pursuant to Sections 2.3, 2.4 or 2.5 shall terminate on the seventh
(7th) anniversary of a Qualified IPO of the Company.
2.11 No Registration Rights to Third Parties. Without the prior written consent of the
Holders of a majority in interest of the Registrable Securities then outstanding, the Company
covenants and agrees that it shall not grant, or cause or permit to be created, for the benefit of
any person or entity any registration rights of any kind (whether similar to the demand,
“piggyback” or Form F-3 registration rights described in this Section 2, or otherwise) relating to
any securities of the Company which are senior to, or on a parity with, those granted to the
Holders of Registrable Securities.
2.12 Market Stand-Off. Each Holder agrees that, so long as it holds any voting
securities of the Company, upon request by the Company or the underwriters managing the initial
public offering of the Company’s securities, it will not sell or otherwise transfer or dispose of
any securities of the Company (other than those permitted to be included in the registration and
other transfers to affiliates permitted by this Agreement) without the prior written consent of the
Company or such underwriters, as the case may be, for a period of time specified by the
representative of the underwriters not to exceed one hundred and eighty (180) days from the
effective date of the registration statement covering such initial public offering or the pricing
date of such offering as may be requested by the underwriters. The foregoing provision of this
Section 2.12 shall not apply to the sale of any securities of the Company to an underwriter
pursuant to any underwriting agreement, and shall only be applicable to the Holders if all
officers, directors and holders of 1% or more of the Company’s outstanding share capital enter into
similar agreements, and if the Company or any underwriter releases any officer, director or holder
of 1% or more of the Company’s outstanding share capital from his or her sale restrictions so
undertaken, then each Holder shall be notified prior to such release and shall itself be
simultaneously released to the same proportional extent. The Company shall require all future
acquirers of the Company’s securities holding at least 1% of the then outstanding share capital of
the Company to execute prior to a Qualified IPO a market stand-off agreement containing
substantially similar provisions as those contained in this Section 2.12.
2.13 Listing in Hong Kong. Without limiting the generality of the foregoing
provisions in this Section 2, in the event of a listing of the Company’s Ordinary Shares in Hong
Kong (the “Listing”):
(a) The selection of Hong Kong as the jurisdiction, and the relevant exchange as the exchange,
for the Listing shall be subject to the prior written approval of Holders of at least a majority of
the Registrable Securities;
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(b) The selection of the sponsor and/or lead manager (and any co-managers) for the Listing
shall be subject to the prior written approval of Holders of at least a majority of the Registrable
Securities;
(c) Each Holder of Registrable Securities shall have the right to include and sell all of the
Ordinary Shares (as-converted) held by it in such Listing;
(d) Each Holder of Registrable Securities shall have the right to attend all meetings in
connection with the Listing where the Company is present;
(e) The determination of the price at which the Ordinary Shares are to be listed in such
Listing shall be subject to the prior written approval of Holders of at least a majority of the
Registrable Securities;
(f) At any time after the third anniversary of the date of this Agreement, at the written
request from Holders of at least a majority of the Registrable Securities for a Listing, the
Company shall use its best efforts to effect such Listing on terms and subject to conditions as
agreed upon between the Company and such Holder; and
(g) The Company shall not require any Holder to hold, or refrain from transferring, any of its
shares in the Company beyond the specific period(s) set forth in the listing rules applicable to
such Listing, or as requested by the Company or the underwriters pursuant to Section 2.12.
2.14 Rule 144 Reporting. With a view to making available to the Holders the benefits
of certain rules and regulations of the SEC which may at any time permit the sale of the
Registrable Securities to the public without registration or pursuant to a registration on Form
F-3, after such time as a public market exists for the Ordinary Shares, the Company agrees to:
(a) Make and keep public information available, as those terms are understood and defined in
Rule 144 under the Securities Act, at all times after the effective date of the first registration
under the Securities Act filed by the Company for an offering of its securities to the general
public;
(b) File with the SEC in a timely manner all reports and other documents required of the
Company under the Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements); and
(c) So long as a Holder owns any Registrable Securities, to furnish to such Holder forthwith
upon request (i) a written statement by the Company as to its compliance with the reporting
requirements of Rule 144 (at any time after ninety (90) days after the effective date of the
Company’s initial public offering), the Securities Act and the Exchange Act (at any time after it
has become subject to such reporting requirements), or its qualification as a registrant whose
securities may be resold pursuant to Form F-3 (at any time after it so qualifies), (ii) a copy of
the most recent annual or quarterly report of the Company, and (iii) such other reports and
documents of the Company as a Holder may reasonably request in availing itself of any rule or
regulation of the SEC that permits the selling of any such securities without registration or
pursuant to Form F-3.
3. RIGHT OF PARTICIPATION.
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3.1 General. The Preferred Shareholders, the holders of Ordinary Shares and their
permitted transferees to which rights under this Section 3 have been duly assigned in accordance
with the terms of this Agreement (each a “Participation Rights Holder”) shall have the right of
first refusal to purchase such Participation Rights Holder’s Pro Rata Share (as defined below), of
all (or any part) of any New Securities (as defined in Section 3.3) that the Company may from time
to time issue after the date of this Agreement (the “Right of Participation”).
3.2 Pro Rata Share. A Participation Rights Holder’s “Pro Rata Share” for purposes of
the Right of Participation is the ratio of (a) the number of Ordinary Shares (calculated on a
fully-diluted and as-converted basis) held by such Participation Rights Holder, to (b) the total
number of Ordinary Shares (calculated on a fully-diluted and as-converted basis) then outstanding
immediately prior to the issuance of New Securities giving rise to the Right of Participation.
3.3 New Securities. “New Securities” shall mean any Preferred Shares, any other shares
of the Company designated as “preferred shares”, Ordinary Shares or other voting shares of the
Company, whether now authorized or not, and rights, options or warrants to purchase such Preferred
Shares, other preferred shares, Ordinary Shares and securities of any type whatsoever that are, or
may become, convertible or exchangeable into such Preferred Shares, other preferred shares,
Ordinary Shares or other voting shares, provided, however, that the term “New
Securities” shall not include:
(a) (i) the issuance of 66,580,000 Ordinary Shares upon the exercise of the option held by
Winsome Group Limited on behalf of Ma Xxxxx Xxxx, Xxx Xxxx Ho, Ma Wen Lie, Xxxx Lo Yin, Li Jin and
other officers, employees and advisors of the Company, (ii) the issuance of up to 151,430,000
Ordinary Shares (or options or warrants therefor) pursuant to employee equity incentive plans, and
(iii) the issuance of up to 50,246,000 Ordinary Shares upon the exercise of the options granted to
certain individuals under the Company’s 2009 Share Incentive Plan;
(b) any Series B1 Shares issued under that certain Series B1 Preferred Share Subscription
Agreement dated as of December 22, 2009 by and among China Linong, the BVI Subsidiary, the HK
Subsidiaries, the PRC Subsidiaries, the Founders and the Series B1 Holders (the “Purchase
Agreement”), as such agreement may be amended and any Ordinary Shares issued pursuant to the
conversion thereof;
(c) any securities issued in connection with any share split, share dividend or other similar
event in which all Participation Rights Holders are entitled to participate on a pro rata basis;
(d) any securities issued upon the exercise, conversion or exchange of any outstanding
security if such outstanding security constituted a New Security;
(e) any securities issued pursuant to a Qualified IPO; or
(f) any securities issued pursuant to the acquisition of another corporation or entity by the
Company by consolidation, merger, purchase of assets, or other reorganization in which the Company
acquires, in a single transaction or series of related transactions, all or substantially all
assets of such other corporation or entity, or 50% or more of the equity ownership or voting power
of such other corporation or entity.
3.4 Procedures.
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(a) First Participation Notice. In the event that the Company proposes to undertake an
issuance of New Securities (in a single transaction or a series of related transactions), it shall
give to each Participation Rights Holder written notice of its intention to issue New Securities
(the “First Participation Notice”), describing the amount and type of New Securities, the price and
the general terms upon which the Company proposes to issue such New Securities. Each Participation
Rights Holder shall have fifteen (15) days from the date of receipt of any such First Participation
Notice to agree in writing to purchase such Participation Rights Holder’s Pro Rata Share of such
New Securities for the price and upon the terms and conditions specified in the First Participation
Notice by giving written notice to the Company and stating therein the quantity of New Securities
to be purchased (not to exceed such Participation Rights Holder’s Pro Rata Share). If any
Participation Rights Holder fails to so agree in writing within such fifteen (15) day period to
purchase such Participation Rights Holder’s full Pro Rata Share of an offering of New Securities,
then such Participation Rights Holder shall forfeit the right hereunder to purchase that part of
its Pro Rata Share of such New Securities that it did not agree to purchase.
(b) Second Participation Notice; Oversubscription. If any Participating Rights Holder
fails or declines to exercise its Right of Participation in accordance with Section 3.4(a) above,
the Company shall promptly give notice (the “Second Participation Notice”) to other Participating
Rights Holders who exercised their Right of Participation (the “Right Participants”) in accordance
with Section 3.4(a) above. Each Right Participant shall have five (5) business days from the date
of the Second Participation Notice (the “Second Participation Period”) to notify the Company of its
desire to purchase more than its Pro Rata Share of the New Securities, stating the number of the
additional New Securities it proposes to buy (the “Additional Number”). Such notice may be made by
telephone if confirmed in writing within two (2) business days. If, as a result thereof, such
oversubscription exceeds the total number of the remaining New Securities available for purchase,
each oversubscribing Right Participant will be cut back by the Company with respect to its
oversubscription to that number of remaining New Securities equal to the lesser of (x) the
Additional Number and (y) the product obtained by multiplying (i) the number of the remaining New
Securities available for subscription by (ii) a fraction, the numerator of which is the number of
Ordinary Shares (calculated on a fully-diluted and as-converted basis) held by such oversubscribing
Right Participant and the denominator of which is the total number of Ordinary Shares (calculated
on a fully-diluted and as-converted basis) held by all the oversubscribing Right Participants.
Each Right Participant shall be obligated to buy such number of New Securities as determined by the
Company pursuant to this Section 3.4 and the Company shall so notify the Right Participants within
fifteen (15) business days following the date of the Second Participation Notice.
3.5 Failure to Exercise. Upon the expiration of the Second Participation Period, or
in the event no Participation Rights Holder exercises the Right of Participation within fifteen
(15) days following the issuance of the First Participation Notice, the Company shall have one
hundred and twenty (120) days thereafter to sell the New Securities described in the First
Participation Notice (with respect to which the Right of Participation hereunder were not
exercised) at the same or higher price and upon non-price terms not materially more favorable to
the purchasers thereof than specified in the First Participation Notice. In the event that the
Company has not issued and sold such New Securities within such one hundred and twenty (120) day
period, then the Company shall not thereafter issue or sell any New Securities without again first
offering such New Securities to the Participation Rights Holders pursuant to this Section 3.
3.6 Termination. The Right of Participation for each Participation Rights Holder
shall terminate upon a Qualified IPO.
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4. TRANSFER RESTRICTIONS.
4.1 Certain Definitions. For purposes of this Section 4, “Ordinary Holder” means a
holder of the Company’s outstanding Ordinary Shares and its permitted assignees to whom their
rights under this Section 4 have been duly assigned in accordance with this Agreement; provided
that Ordinary Shares issued upon conversion of any Preferred Shares shall not be considered
Ordinary Shares for the purposes of this Section 4 with respect to Ordinary Shares; “Preferred
Holder” means each of the Preferred Shareholders and its permitted assignees to whom its rights
under this Section 4 have been duly assigned in accordance with this Agreement; “Restricted Shares”
means any of the Company’s securities now owned or subsequently acquired by an Ordinary Holder;
4.2 Sale of Restricted Shares; Notice of Sale. Subject to Section 4.7 of this
Agreement, if any Ordinary Holder (the “Selling Shareholder”) receives a bona fide third party
offer to acquire any Restricted Shares held by it (the “Offered Shares”), then the Selling
Shareholder shall promptly give written notice (the “Transfer Notice”) to the Company, each other
Ordinary Holder and each Preferred Holder prior to the sale or transfer of such Offered Shares. If
any Preferred Holder (the “Selling Preferred Holder”) receives a bona fide third party offer to
acquire any Preferred Shares held by it or any Ordinary Shares issued upon conversion of any
Preferred Shares held by it (together, the “Preferred Offered Shares”), such Selling Preferred
Holder shall promptly give a Transfer Notice to each other Preferred Holder prior to the sale or
transfer of such Preferred Offered Shares (the “Preferred Offer”). The Transfer Notice shall
describe in reasonable detail the proposed sale or transfer including, without limitation, the
number of Offered Shares to be sold or transferred, or the number of Preferred Offered Shares to be
sold or transferred (in the event of a Preferred Offer), the nature of such sale or transfer, the
consideration to be paid, and the name and address of each prospective purchaser or transferee.
4.3 Right of First Refusal and Co-Sale Rights.
(a) Company’s Option. The Company shall have the right, exercisable upon written
notice to the Selling Shareholder, the Ordinary Holders and Preferred Holders, within forty-five
(45) days after receipt of the Transfer Notice (the “Company Refusal Period”), to elect to purchase
all or part of the Offered Shares; provided that the Company’s right under this Section 4.3(a)
shall expire on the first anniversary of this Agreement.
(b) Preferred Holders’ Option.
(i) If and to the extent that any Offered Shares have not been purchased pursuant to Section
4.3(a), each Preferred Holder shall have the right, exercisable upon written notice to the Selling
Shareholder, the Company and each other Ordinary Holder and Preferred Holder, within forty-five
(45) days after the Company Refusal Period (the “First Refusal Period”), to elect to purchase all
or any part of its pro rata share of the Offered Shares equivalent to the product obtained by
multiplying the aggregate number of the Offered Shares by a fraction, the numerator of which is the
number of Ordinary Shares (calculated on an as-converted basis) held by such Preferred Holder on
the date of the Transfer Notice and the denominator of which is the total number of Ordinary Shares
(calculated on an as-converted basis) owned by all the Preferred Holders on the date of the
Transfer Notice, at the same price and subject to the same material terms and conditions as
described in the Transfer Notice;
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(ii) Each Preferred Holder shall also have the right, exercisable upon written notice to the
Selling Preferred Holder, the Company and each other Preferred Holder, within forty-five (45) days
after receipt of the Transfer Notice (the “Preferred First Refusal Period”), to elect to purchase
all or any part of its pro rata share of the Preferred Offered Shares equivalent to the product
obtained by multiplying the aggregate number of the Preferred Offered Shares by a fraction, the
numerator of which is the number of Ordinary Shares (calculated on an as-converted basis) held by
such Preferred Holder on the date of the Transfer Notice and the denominator of which is the total
number of Ordinary Shares (calculated on an as-converted basis) owned by all the Preferred Holders
on the date of the Transfer Notice, at the same price and subject to the same material terms and
conditions as described in the Transfer Notice; and
(iii) To the extent that any Preferred Holder does not exercise its right of first refusal to
the full extent of its pro rata share of the Offered Shares, or the Preferred Offered Shares (in
the event of a Preferred Offer), (x) the Selling Shareholder or Selling Preferred Holder (in the
event of a Preferred Offer) shall, promptly upon expiration of the First Refusal Period or
Preferred First Refusal Period (in the event of a Preferred Offer), notify each Preferred Holder
that has exercised in full its pro rata right of first refusal to the Offered Shares or the
Preferred Offered Shares (in the event of a Preferred Offer) during the First Refusal Period or the
Preferred First Refusal Period (in the event of a Preferred Offer) (each such Preferred Holders, a
“First Refusal Participant”) of the number of Offered Shares or Preferred Offered Shares (in the
event of a Preferred Offer) with respect to which the first refusal rights of Preferred Holders
were not exercised (such shares, the “Excess Shares”), and (y) each First Refusal Participant shall
have the right, exercisable by delivery of written notice (the “Excess Shares Notice”) to the
Selling Shareholder or Preferred Selling Holder within fifteen (15) days after receipt of the
notice required under sub-section (x) of this Section 4.3(b) (the “First Refusal Adjustment
Period”), to purchase part or all of the Excess Shares. If the total number of Excess Shares which
all of the First Refusal Participants desire to purchase as set forth in the Excess Shares Notices
is greater than the number of Excess Shares available for purchase, then each First Refusal
Participant that has delivered an Excess Shares Notice to the Selling Shareholder or the Selling
Preferred Holder shall have the right to purchase such number of Excess Shares that is equal to the
product of (aa) the total number of Excess Shares, multiplied by (bb) a fraction, the numerator of
which is the Ordinary Shares owned by such First Refusal Participant (calculated on an as-converted
basis) and the denominator of which is the total number of Ordinary Shares owned by all First
Refusal Participants (on an as-converted basis).
(c) Ordinary Holders’ Option. If and to the extent that any Offered Shares have not
been purchased pursuant to Section 4.3(b), each Ordinary Holder shall have the right, exercisable
upon written notice to the Selling Shareholder, the Company and each other Ordinary Holder and
Preferred Holder, within forty-five (45) days following the expiration of the First Refusal
Adjustment Period (the “Ordinary First Refusal Period”), to elect to purchase all or any part of
its pro rata share of the remaining Offered Shares equivalent to the product obtained by
multiplying the aggregate number of the remaining Offered Shares by a fraction, the numerator of
which is the number of Ordinary Shares held by such Ordinary Holder at the time of the transaction
and the denominator of which is the total number of Ordinary Shares owned by all the Ordinary
Holders at the time of the transaction, at the same price and subject to the same material terms
and conditions as described in the Transfer Notice. To the extent that any Ordinary Holder does not
exercise its right of first refusal to the full extent of its pro rata share of the Offered Shares,
the Selling Shareholder and the participating Ordinary Holders shall, within fifteen (15) days
after the end of the Ordinary First Refusal Period (the “Ordinary First Refusal Adjustment
Period”), make such adjustments to each exercising Ordinary Holder’s pro rata share of the Offered
Shares so that any remaining Offered
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Shares may be allocated to those Ordinary Holders exercising their rights of first refusal on
a pro rata basis.
(d) A Preferred Holder and an Ordinary Holder shall not have a right to purchase any of the
Offered Shares or Preferred Offered Shares unless it exercises its right of first refusal within
the relevant First Refusal Period, Preferred First Refusal Period or First Refusal Adjustment
Period, or the Ordinary First Refusal Period or Ordinary First Refusal Adjustment Period to
purchase up to all of its pro rata share of the Offered Shares or Preferred Offered Shares.
(e) Expiration Notice. Within fifteen (15) days after expiration of the Ordinary First
Refusal Adjustment Period or the First Refusal Adjustment Period, the Company will give written
notice (the “First Refusal Expiration Notice”) to the Selling Shareholder or the Selling Preferred
Holder (in the event of a Preferred Offer) specifying either (i) that all of the Offered Shares or
Preferred Offered Shares was subscribed by the Preferred Holders and/or Ordinary Holders exercising
their rights of first refusal or (ii) that the Ordinary Holders and/or Preferred Holders have not
subscribed all of the Offered Shares or Preferred Offered Shares in which case the First Refusal
Expiration Notice will specify the Co-Sale Pro-Rata Portion (as defined below) of the remaining
Offered Shares or Preferred Offered Shares for the purpose of their co-sale rights described in
Section 4.4 below.
(f) Purchase Price. The purchase price for the Offered Shares or Preferred Offered
Shares (in the event of a Preferred Offer) to be purchased by the Ordinary Holders and/or Preferred
Holders exercising their right of first refusal will be the price set forth in the Transfer Notice,
but will be payable as set forth in this Section 4.3(g). If the purchase price in the Transfer
Notice includes consideration other than cash, the cash equivalent value of the non-cash
consideration will be determined by the Board in good faith, which determination will be binding
upon the Ordinary Holders, Preferred Holders, the Selling Shareholder, and the Selling Preferred
Holder absent fraud or error.
(g) Payment. Payment of the purchase price for the Offered Shares or Preferred Offered
Shares (in the event of a Preferred Offer) purchased by the Ordinary Holders and/or Preferred
Holders shall be made within fifteen (15) days following the date of the First Refusal Expiration
Notice. Payment of the purchase price will be made by wire transfer or check as directed by the
Selling Shareholder or Selling Preferred Holder (in the event of a Preferred Offer).
(h) Rights of a Selling Shareholder and Selling Preferred Holder. If any Preferred
Holder or Ordinary Holder exercises its right of first refusal to purchase the Offered Shares or
Preferred Offered Shares (in the event of a Preferred Offer), then, upon the date the notice of
such exercise is given by such Preferred Holder or Ordinary Holder (as the case may be), the
Selling Shareholder or Selling Preferred Holder will have no further rights as a holder of such
Offered Shares or Preferred Offered Shares except the right to receive payment for such Offered
Shares or Preferred Offered Shares from such Preferred Holder or Ordinary Holder in accordance with
the terms of this Agreement, and the Selling Shareholder or Selling Preferred Holder will forthwith
cause all certificate(s) evidencing such Offered Shares or Preferred Offered Shares to be
surrendered to the Company for transfer to such Preferred Holder or Ordinary Holder.
(i) Application of Co-Sale Rights. If the Ordinary Holders and/or Preferred Holders
have not elected to purchase all of the Offered Shares or Preferred Offered Shares (in the event of
a Preferred Offer), then the sale of the remaining Offered Shares or Preferred Offered Shares will
become subject to the co-sale rights set forth in Section 4.4 below.
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4.4 Co-Sale Right. To the extent that the Ordinary Holders and/or Preferred Holders
have not exercised right of first refusal with respect to any or all the Offered Shares or
Preferred Offered Shares (in the event of a Preferred Offer), then each Preferred Holder shall have
the right, exercisable upon written notice to the Selling Shareholder or Preferred Selling Holder
(in the event of a Preferred Offer), the Company and each other Preferred Holder (the “Co-Sale
Notice”) within twenty (20) days after receipt of the First Refusal Expiration Notice (the “Co-Sale
Right Period”), to participate in such sale of the Offered Shares or Preferred Offered Shares on
the same terms and conditions as set forth in the Transfer Notice. The Co-Sale Notice shall set
forth the number of Company securities (on both an absolute and as-converted to Ordinary Shares
basis) that such participating Preferred Holder wishes to include in such sale or transfer, which
amount shall not exceed the Co-Sale Pro Rata Portion (as defined below) of such Preferred Holder.
To the extent one or more of the Preferred Holders exercise such right of participation in
accordance with the terms and conditions set forth below, the number of Restricted Shares that the
Selling Shareholder may sell, or the number of Preferred Offered Shares that the Selling Preferred
Shareholder may sell, in the transaction shall be correspondingly reduced. The co-sale right of
each Preferred Holder shall be subject to the following terms and conditions:
(a) Co-Sale Pro Rata Portion. Each Preferred Holder may sell all or any part of that
number of Ordinary Shares held by it (on an as-converted basis) that is equal to the product
obtained by multiplying (x) the aggregate number of the Offered Shares or Preferred Offered Shares
(in the event of a Preferred Offer) subject to the co-sale right hereunder by (y) a fraction, the
numerator of which is the number of Ordinary Shares (on an as-converted basis) owned by the
Preferred Holder at the time of the sale or transfer and the denominator of which is the total
combined number of Ordinary Shares (on an as-converted basis) at the time owned by all Preferred
Holders and the Selling Shareholder, or at the time owned by all Preferred Holders and the Selling
Preferred Holder (in the event of a Preferred Offer), (the “Co-Sale Pro Rata Portion”). To the
extent that any Preferred Holder does not participate in the sale to the full extent of its Co-Sale
Pro Rata Portion, the Selling Shareholder or the Selling Preferred Holder (in the event of a
Preferred Offer) and the participating Preferred Holders shall, within five (5) days after the end
of such Co-Sale Right Period, make such adjustments to the Co-Sale Pro Rata Portion of each
participating Preferred Holder so that any remaining Offered Shares or Preferred Offered Shares may
be allocated to other participating Preferred Holders on a pro rata basis.
(b) Transferred Shares. Each participating Preferred Holder shall effect its
participation in the sale by promptly delivering to the Selling Shareholder or Selling Preferred
Holder (in the event of a Preferred Offer) for transfer to the prospective purchaser one or more
certificates, properly endorsed for transfer, which represent:
(i) the number of Ordinary Shares which such Preferred Holder elects to sell;
(ii) that number of Preferred Shares which is at such time convertible into the number of
Ordinary Shares that such Preferred Holder elects to sell; provided in such case that, if
the prospective purchaser objects to the delivery of Preferred Shares in lieu of Ordinary Shares,
such Preferred Holder shall convert such Preferred Shares into Ordinary Shares and deliver Ordinary
Shares as provided in Section 4.4(b)(i) above. The Company agrees to make any such conversion
concurrent with the actual transfer of such shares to the purchaser; or
(iii) or a combination of the above.
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(c) Payment to Preferred Holders. The share certificate or certificates that the
participating Preferred Holder delivers to the Selling Shareholder pursuant to Section 4.4(b) shall
be transferred to the prospective purchaser in consummation of the sale of the Restricted Shares or
the sale of the Preferred Offered Shares, pursuant to the terms and conditions specified in the
Transfer Notice, and the Selling Shareholder or Selling Preferred Holder (in the event of a
Preferred Sale) shall concurrently therewith remit to such Preferred Holder that portion of the
sale proceeds to which such Preferred Holder is entitled by reason of its participation in such
sale. To the extent that any prospective purchaser or purchasers prohibits such assignment or
otherwise refuses to purchase any shares or other securities from a Preferred Holder exercising its
co-sale right hereunder, the Selling Shareholder or Selling Preferred Holder shall not sell to such
prospective purchaser or purchasers any Restricted Shares or Preferred Offered Shares unless and
until, simultaneously with such sale, the Selling Shareholder or Selling Preferred Shareholder
shall purchase such shares or other securities from such Preferred Holder.
4.5 Right to Transfer. To the extent the Preferred Holders and/or the other Ordinary
Holders do not elect to purchase, or to participate in the sale of, the Restricted Shares or
Preferred Offered Shares subject to the Transfer Notice in accordance with the provisions of this
Agreement, as the case may be, the Selling Shareholder or Selling Preferred Holder may, not later
than one hundred and twenty (120) days following delivery to the Company, each of the other
Ordinary Holders and each of the Preferred Holders of the Transfer Notice, conclude a transfer of
the Restricted Shares or Preferred Offered Shares covered by the Transfer Notice and not elected to
be purchased by the Preferred Holders and/or the other Ordinary Holders, which in each case shall
be on the same terms and conditions as those described in the Transfer Notice. Any proposed
transfer on terms and conditions which are different from those described in the Transfer Notice,
as well as any subsequent proposed transfer of any Restricted Shares by the Selling Shareholder or
any Preferred Offered Shares by the Selling Preferred Holder (including any transfer to the
transferee(s) specified in the Transfer Notice that has not been completed within one hundred and
twenty (120) days following delivery of the Transfer Notice), shall again be subject to the right
of first refusal and the co-sale right of the Preferred Holders and, if applicable, the other
Ordinary Holders and shall require compliance by the Selling Shareholder or the Selling Preferred
Holder with the procedures described in Section 4.3 and Section 4.4 of this Agreement.
4.6 Exempt Transfers. Notwithstanding anything to the contrary contained herein, the
right of first refusal and co-sale rights of the Preferred Holders and/or the Ordinary Holders
shall not apply to (a) any sale or transfer of Ordinary Shares to the Company pursuant to a
repurchase right or right of first refusal held by the Company in the event of a termination of
employment or consulting relationship; or (b) any transfer to the parents, children or spouse, or
to trusts for the benefit of such persons, of any Founder for bona fide estate planning purposes;
or (c) any sale or transfer of Ordinary Shares by Valuetrue Investments Limited (each transferee
pursuant to the foregoing clauses (a), (b) and (c), a “Permitted Transferee”); or (d) any sale or
transfer of Preferred Shares or Ordinary Shares by any Preferred Holder to an affiliate of such
Preferred Holder; provided that adequate documentation therefor is provided to the
Preferred Shareholders to their satisfaction and that any such Permitted Transferee agrees in
writing to be bound by this Agreement in place of the relevant transferor; provided,
further, that such transferor shall remain liable for any breach by such Permitted
Transferee of any provision hereunder.
4.7 Prohibited Transfers.
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(a) Except for transfers by the Ordinary Holders to Permitted Transferees as provided in
Section 4.6 above, none of the Ordinary Holders or the Permitted Transferees shall, without the
prior written consent of (i) the holders of a majority of the Series A Shares and the Series A1
Shares, voting together as a separate class, and (ii) the holders of a majority of the Series B
Shares and the Series B1 Shares, voting together as a separate class, sell, assign, transfer,
pledge, hypothecate, mortgage, encumber or otherwise dispose through one or a series of
transactions of any Company securities now held by him to any person any time prior to the
Qualified IPO; provided that during such period each Existing Shareholder controlled by the
Founders may sell, transfer, or otherwise dispose of, up to an aggregate of 10% of the issued
outstanding Ordinary Shares held by such Existing Shareholder as of the date hereof;
provided further, that any such sale, transfer or disposition shall nevertheless be
subject to the right of first refusal and co-sale rights of the Preferred Holders and the Ordinary
Holders under Sections 4.3, 4.4 and 4.5 above.
(b) Any attempt by a party to sell or transfer Restricted Shares or Preferred Shares in
violation of this Section 4 shall be void and the Company hereby agrees it will not effect such a
transfer nor will it treat any alleged transferee as the holder of such shares without the written
consent of holders of a majority of Preferred Shares.
(c) The Investors and their respective affiliates to whom any Preferred Share or Ordinary
Share has been duly assigned in accordance with this Agreement, may not sell or transfer part or
all of their shares to any competitor of the Company. For the purpose of this Section 4.7, a
“competitor” of the Company shall mean any entity whose business or product competes directly or
indirectly against the Principal Business of the Company, as defined herein, and its subsidiaries
(including the Subsidiaries).
4.8 Legend.
(a) Each certificate representing the Restricted Shares or Preferred Offered Shares shall be
endorsed with the following legend:
“THE SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE
IS SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER SET FORTH IN A SHAREHOLDERS’ AGREEMENT, A COPY OF
WHICH MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE COMPANY.”
(b) The Company may instruct its transfer agent to impose transfer restrictions on the shares
represented by certificates bearing the legend referred to in Section 4.8(a) above to enforce the
provisions of this Agreement and the Company agrees to promptly do so. The legend shall be removed
upon termination of the provisions of this Section 4.
4.9 Restriction on Indirect Transfers. Notwithstanding anything to the contrary
contained herein, without the prior written approval of holders of at least a majority of the
Preferred Shares:
(a) Each of the Founders shall not, and shall use his best efforts to cause any shareholder of
any Existing Shareholder not to, directly or indirectly, sell, assign, transfer, pledge,
hypothecate, mortgage, encumber or otherwise dispose through one or a series of transactions any
equity interest or equity securities or any economic interest deriving therefrom, held, directly or
indirectly, by such Founder and/or shareholder in such Existing Shareholder to any person or entity
other than one that is solely owned by such Founder and/or shareholder;
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(b) Each Existing Shareholder shall not, and each of the Founders shall use his best efforts
to cause such Existing Shareholder not to, issue to any person any equity securities of such
Existing Shareholder or any options or warrants for, or any other securities exchangeable for or
convertible into, such equity securities of such Existing Shareholder; and
(c) Notwithstanding the foregoing, the restrictions under this Section 4.9 shall not apply to
(i) any transfers or issuances with respect to the equity interest in Valuetrue Investments
Limited; and (ii) any transfers or issuances to the parents, children or spouse of any Founder
and/or any shareholder of an Existing Shareholder occurring after the date hereof with respect to
the equity interest in any Existing Shareholder which do not exceed 20% of the capital of such
Existing Shareholder at any time in the aggregate; provided that each Founder shall, and
shall use his best efforts to cause each other shareholder of an Existing Shareholder to, promptly
notify the Company and each Preferred Shareholder of any transfer of equity interests pursuant to
this Section 4.9.
4.10 Term. The provisions under this Section 4 shall terminate upon a Qualified IPO.
5. ASSIGNMENT AND AMENDMENT.
5.1 Assignment. Notwithstanding anything herein to the contrary:
(a) Information Rights; Registration Rights. The Information and Inspection Rights
under Section 1.1 may be assigned to any holder of Preferred Shares; and the registration rights of
the Holders under Section 2 may be assigned to any Holder or to any person acquiring Registrable
Securities; provided, however, that in either case no party may be assigned any of
the foregoing rights unless the Company is given written notice by the assigning party stating the
name and address of the assignee and identifying the securities of the Company as to which the
rights in question are being assigned; and provided further, that any such assignee
shall receive such assigned rights subject to all the terms and conditions of this Agreement,
including without limitation the provisions of this Section 5.
(b) Rights of Participation; Right of First Refusal; Co-Sale Rights. The rights of the
Preferred Shareholders under Sections 3 and 4 are fully assignable in connection with a transfer of
shares of the Company by the Preferred Shareholders; provided, however, that no
party may be assigned any of the foregoing rights unless the Company is given written notice by the
Preferred Shareholders stating the name and address of the assignee and identifying the securities
of the Company as to which the rights in question are being assigned; and provided
further, that any such assignee shall receive such assigned rights subject to all the terms
and conditions of this Agreement.
5.2 Amendment of Rights. Any provision in this Agreement may be amended and the
observance thereof may be waived (either generally or in a particular instance and either
retroactively or prospectively), only by the written consent of (i) as to the Company, only by the
Company; (ii) as to each Subsidiary, by such Subsidiary; (iii) as to the Preferred Shareholders, by
(x) persons or entities holding at least 66.6667% of the Series A Shares and Series A1 Shares
voting together as a separate class and (y) persons or entities holding at least 66.6667% of the
Series B Shares and Series B-1 Shares voting together as a separate class; provided,
however that any holder of Preferred Shares may waive any of its rights hereunder without
obtaining the consent of any other holders of Preferred Shares or their assigns; and (iv) as to
each Existing Shareholder, by such
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Existing Shareholder and its assigns; and (v) as to each Founder, by such Founder. Any
amendment or waiver effected in accordance with this Section 5.2 shall be binding upon the Company,
the Preferred Shareholders, the Subsidiaries, the Existing Shareholders, the Founders and their
respective assigns.
6. CONFIDENTIALITY AND NON-DISCLOSURE.
6.1 Disclosure of Terms. The terms and conditions of this Agreement and the Purchase
Agreement, and all exhibits and schedules attached to such agreements (collectively, the “Financing
Terms”), including their existence, shall be considered confidential information and shall not be
disclosed by any party hereto to any third party except in accordance with the provisions set forth
below; provided that such confidential information shall not include any information that
is in the public domain other than caused by the breach of the confidentiality obligations
hereunder.
6.2 Press Releases, Etc. Any press release issued by the Company shall not disclose
any of the Financing Terms and the final form of such press release shall be approved in advance in
writing by the Preferred Shareholders. No other announcement regarding any of the Financing Terms
in a press release, conference, advertisement, announcement, professional or trade publication,
mass marketing materials or otherwise to the general public may be made without the Preferred
Shareholders’ and the Company’s prior written consent.
6.3 Permitted Disclosures. Notwithstanding the foregoing, any party may disclose any
of the Financing Terms to its current or bona fide prospective investors, employees, investment
bankers, lenders, partners, accountants and attorneys, in each case only where such persons or
entities are under appropriate nondisclosure obligations. Without limiting the generality of the
foregoing, the Preferred Shareholders shall be entitled to disclose the Financing Terms for the
purposes of fund reporting or inter-fund reporting or to their fund manager, other funds managed by
their fund manager and their respective auditors, counsel, directors, officers, employees,
shareholders or investors.
6.4 Legally Compelled Disclosure. In the event that any party is requested or becomes
legally compelled (including without limitation, pursuant to securities laws and regulations) to
disclose the existence of this Agreement and the Purchase Agreement, any of the exhibits and
schedules attached to such agreements, or any of the Financing Terms hereof in contravention of the
provisions of this Section 6, such party (the “Disclosing party”) shall, unless not possible or not
permitted by law, a reasonable time before making any such disclosure, consult the other parties
(the “Non-Disclosing Parties”) regarding such disclosure with prompt written notice of that fact
and use all reasonable efforts to seek (with the cooperation and reasonable efforts of the other
parties) a protective order, confidential treatment or other appropriate remedy. In such event,
the Disclosing party shall furnish only that portion of the information which is legally required
to be disclosed and shall exercise reasonable efforts to keep confidential such information to the
extent reasonably requested by any Non-Disclosing party.
6.5 Other Information. The provisions of this Section 6 shall be in addition to, and
not in substitution for, the provisions of any separate nondisclosure agreement executed by any of
the parties with respect to the transactions contemplated hereby.
6.6 Notices. All notices required under this section shall be made pursuant to Section
11.1 of this Agreement.
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7. PROTECTIVE PROVISIONS.
In addition to such other limitations as may be provided in the Memorandum and Articles and
the Companies Law (2009 Revision) of the Cayman Islands, the Company shall not, and shall cause the
other Group Companies to not, and the holders of Ordinary Shares shall exercise all of their rights
with respect to such Ordinary Shares so as to cause the Group Companies to not, effect or otherwise
consummate any of the following acts without first obtaining,
7.1 the prior written approval of (i) the holder(s) of at least 75% of the outstanding Series
A Shares and Series A1 Shares (in aggregate and on an as-converted basis), and (ii) the holder(s)
of at least 50% of the outstanding Series B Shares and Series B1 Shares (in aggregate and on an as
converted basis); provided that such requirement shall terminate upon a Qualified Public
Offering:
(a) any amendment or change of the rights, preferences, privileges or powers of, or the
restrictions provided for the benefit of, the Preferred Shares of the Company;
(b) any action to authorize, create or issue shares of any class or series of the Company
having preferences superior to or on a parity with the Preferred Shares in any aspects including
without limitation, dividend rights, redemption rights and/or liquidation rights;
(c) any new issuance of any equity securities of the Company, including any change in the
total number of authorized Series B Shares and Series B1 Shares, but excluding (i) any issuance of
the Series B1 Shares authorized under the Purchase Agreement, (ii) any issuance of Ordinary Shares
upon conversion of the Preferred Shares, (iii) the issuance of 66,580,000 Ordinary Shares upon the
exercise of the option held by Winsome Group Limited on behalf of Ma Xxxxx Xxxx, Xxx Xxxx Ho, Ma
Wen Lie, Xxxx Lo Yin, Li Jin and other officers, employees and advisors of the Company, (iv) the
issuance of up to 151,430,000 Ordinary Shares (or options or warrants therefor) pursuant to
employee equity incentive plans, and (v) the issuance of up to 50,246,000 Ordinary Shares upon the
exercise of the options granted to certain individuals under the Company’s 2009 Share Incentive
Plan;
(d) any action of the Company to reclassify any outstanding shares into shares having
preferences or priority as to dividends or assets senior to or on a parity with the preference of
the Preferred Shares;
(e) any increase or decrease of the authorized number of Ordinary Shares or Preferred Shares
of the Company;
(f) any amendment of the Memorandum and Articles of Association or other charter documents of
the Company (including any Major Subsidiary);
(g) any merger or consolidation of the Company (including any Subsidiary) with or into any
other business entity in which the shareholders of the Company (including any Subsidiary)
immediately after such merger or consolidation held shares representing less than a majority of the
voting power of the outstanding share capital of the surviving business entity;
(h) any transaction or series of transactions that would result in a change of control of the
Company (including any Subsidiary);
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(i) the sale, lease, transfer or other disposition of all or substantially all of the assets
of the Company (including any Subsidiary), except for intra-group transactions among the Company
and any Subsidiaries;
(j) any licensing or other transfer of the patents, copyrights, trademarks or other
intellectual property of the Company (including any Subsidiary) other than in the ordinary course
of its business, except for intra-group transactions among the Company and any Subsidiaries;
(k) any increase or decrease of the authorized number of the members of the Board (including
any committees of the Board) of the Company;
(l) effect a liquidation, dissolution or winding up of the Company (including any Subsidiary);
(m) the declaration or payment of a dividend or other distribution on Ordinary Shares or
Preferred Shares of the Company;
(n) any increase of the number of Ordinary Shares of the Company reserved under any employee
equity incentive plan;
(o) any increase in compensation of any employee of the Company (including any Subsidiary)
with an annual salary of US$50,000 or more by more than 20% in a twelve (12) month period;
(p) the extension by the Company of any loan or guarantee for indebtedness to any director,
officer, employee or affiliate of the Company (including any Subsidiary), except for intra-group
transactions among the Company and any Subsidiaries;
(q) any incurrence of indebtedness in excess of US$1,000,000 in the aggregate to the Company
(including any Subsidiary), or creation of any encumbrance whatsoever upon the assets, patents,
copyrights, trademarks or other intellectual property of the Company (including any Subsidiary);
(r) any purchase by the Company (including any Subsidiary) of real property with a value of
US$1,000,000 or more, or any purchase of production facilities with a value of US$500,000 or more,
individually or in the aggregate;
(s) any transaction or series of transactions that are not in the ordinary course of the
Company’s business where the value involved exceeds US$1,000,000, individually or in the aggregate,
during any twelve (12) month period,;
(t) approval of the annual consolidated budget of the Company;
(u) the appointment and removal of any key officer of the Company (including any Major
Subsidiary), including the Chief Executive Officer and the Chief Financial Officer;
(v) the appointment and/or reappointment of auditors of the Company; or
(w) any transaction involving both the Company (including any Subsidiary) and a shareholder of
any Group Company or any of the Company’s employees, officers,
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directors or shareholders or any affiliate of a shareholder of any Group Company or any of
such affiliate’s officers, directors or shareholders, except for intra-group transactions among the
Company and any Subsidiaries and employment contracts between a Group Company and its employees
that are not otherwise subject to this Section 7, and
7.2 the prior written approval of the holder(s) as at the date hereof (taking no account of
any share issuances after the date hereof) of at least 96% of the aggregate of Ordinary Shares and
Preferred Shares (on an as-converted basis), provided that such requirement shall terminate
upon a Qualified IPO, any repurchase or redemption of any equity securities of the Company other
than (A) pursuant to contractual rights to repurchase Ordinary Shares from the employees, directors
or consultants of the Company upon termination of their employment or services or (B) pursuant to a
contractual right of first refusal held by the Company.
Provided, however that, to the extent that the applicable laws prevent the Company from being
bound by any of the above provisions, such provisions shall be binding as amongst the parties
hereto (other than the Company) and such parties shall take all actions necessary to give effect to
such provisions.
8. USE OF PROCEEDS.
The Company covenants and agrees to use the proceeds from the sale of the Series B1 Shares for
business expansion, research and development, production, capital expenditure, general working
capital of the Company and the Subsidiaries in the business of the production, sale and trading of
agricultural and food products and related activities (the “Principal Business”).
9. ADDITIONAL AGREEMENTS AND COVENANTS
9.1 Tax Matters. For so long as any Preferred Shareholder holds any Preferred Shares
or Ordinary Shares issued upon conversion thereof:
(a) The Company agrees to make available to any U.S. Investor (as defined below) upon its
reasonable request and within a reasonable period of time, the books and records of the Company and
its direct and indirect subsidiaries, and to provide information to such U.S. Investor pertinent to
the Company’s or any subsidiary’s status or potential status for U.S. federal income tax purposes
of such U.S. Investor including all information reasonably available to the Company or any of its
subsidiaries to permit such U.S. Investor to (i) accurately prepare all tax returns and comply with
any reporting requirements and (ii) make any election, with respect to the Company or any of its
direct or indirect subsidiaries, and comply with any reporting or other requirements incident to
such election. The Company will, upon becoming actually aware of such assertion, promptly notify
the U.S. Investors of any assertion by the Internal Revenue Service of the United States Department
of the Treasury that the Company or any of its subsidiaries is or is likely to become a passive
foreign investment company within the meaning of Section 1297 of the United States Internal Revenue
Code of 1986, as amended, for the current year or any subsequent year.
(b) The Company shall furnish to each U.S. Investor upon its reasonable request and within a
reasonable period of time and at the expense of such U.S. Investor, all information reasonably
necessary to satisfy the U.S. income tax return filing requirements of such U.S. Investor (or such
other person that owns any direct or indirect interest in such U.S. Investor) arising from its
investment in the Company.
-28-
(c) For purposes of this Section 9.1:
(i) “U.S. Investor” means (A) any Investor that is a United States person and (B) any Investor
that is an entity treated as a foreign partnership for U.S. federal income tax purposes, one or
more of the owners of which are United States persons; and
(ii) “United States person” means any person described in Section 7701(a)(30) of the Internal
Revenue Code of 1986, as amended (the “Code”).
(d) The Company’s obligations under this Section 9 shall terminate upon a Qualified IPO of the
Company.
9.2 Conduct of Business. As long as any Preferred Shareholder holds any Preferred
Shares or Ordinary Shares issued upon conversion thereof:
(a) The Company shall not, and the Founders shall cause the Company and any other persons or
entities directly or indirectly controlled by them not to, and the Company shall ensure that the
Company’s subsidiaries (including any Subsidiary) and their respective officers, directors, and
other persons acting for or on behalf of them under their express authorisation, shall not, in
violation of any applicable law and regulations, make or pay, directly or indirectly, any
contribution, bribe, payoff, kickback, or any fraudulent payment to any officer of any governmental
authority or government-controlled entity, (x) to obtain favourable treatment in securing business
or (y) to obtain special concessions for any Group Company. Notwithstanding anything to the
contrary in this Section 9.2(a) any facilitating or expediting payment made to a government
official for the purpose of expediting or securing the performance of a routine governmental action
by a government official shall not constitute a breach of the covenant made in this sub-section
9.2(a); and
(b) The Company shall ensure that the business of the Company and each of its subsidiaries
(including the Subsidiaries) shall be conducted at all times in compliance with applicable
financial record keeping and reporting requirements and money laundering statutes in Hong Kong and
all other jurisdictions in which the Company and its subsidiaries (including the Subsidiaries)
conduct business, the rules and regulations thereunder and any related or similar rules,
regulations or guidelines issued, administered, or enforced by any governmental agency, authority
or body.
9.3 Operation of Subsidiaries. The Company shall, and the Parties shall take all
actions reasonably required to, ensure that the operations of the Subsidiaries are at all times
carried out in accordance with the decisions of the Board.
10. RIGHTS AND OBLIGATIONS OF NATURAL SCENT LIMITED
(a) Notwithstanding any other provision in this Agreement, with effect from the Transfer Date,
Natural Scent Limited shall (i) cease to be entitled to the benefit of any right conferred on it
under the Original Shareholders’ agreements (but without prejudice to its rights under the Original
Shareholders’ agreements in respect of any breach by any other party to any of the Original
Shareholders’ agreements of its obligations thereunder at any time prior to the Transfer Date); and
(ii) cease to have any obligations under the Original Shareholders’ agreements (save in respect of
any breach by it of its obligations under the Original Shareholders’ agreements prior to the
Transfer Date).
-29-
(b) For the avoidance of doubt, notwithstanding any other provision in this Agreement, Natural
Scent Limited shall not be entitled to the benefit of any right conferred to a party to this
Agreement, or have any obligations, under this Agreement (but without prejudice to Section 10.1 of
this Agreement).
11. GENERAL PROVISIONS.
11.1 Notices. Except as may be otherwise provided herein, all notices, requests,
waivers and other communications made pursuant to this Agreement shall be in writing and shall be
conclusively deemed to have been duly given (a) when hand delivered to the other party, upon
delivery; (b) when sent by facsimile at the number set forth in EXHIBIT H hereto, upon
receipt of confirmation of error-free transmission; (c) seven (7) business days after deposit in
the mail as air mail or certified mail, receipt requested, postage prepaid and addressed to the
other party as set forth in EXHIBIT H; or (d) three (3) business days after deposit with an
international overnight delivery service, postage prepaid, addressed to the parties as set forth in
EXHIBIT H with next business day delivery guaranteed, provided that the sending
party receives a confirmation of delivery from the delivery service provider.
Each person making a communication hereunder by facsimile shall promptly confirm by telephone
to the person to whom such communication was addressed each communication made by it by facsimile
pursuant hereto but the absence of such confirmation shall not affect the validity of any such
communication. A party may change or supplement the addresses given above, or designate additional
addresses, for purposes of this Section 11.1 by giving the other party written notice of the new
address in the manner set forth above.
11.2 Entire Agreement. Subject to section 10, (a) this Agreement, the Purchase
Agreement and any Ancillary Agreements (as defined in the Purchase Agreement), together with all
the exhibits hereto and thereto, constitute and contain the entire agreement and understanding of
the parties with respect to the subject matter hereof and supersedes any and all prior
negotiations, correspondence, agreements, understandings, duties or obligations between the parties
respecting the subject matter hereof; (b) without limiting the generality of the foregoing, this
Agreement supersedes, in its entirety, the Original Shareholders’ agreements, which shall be null
and void and have no force or effect whatsoever as of the date of this Agreement; and (c) the
parties hereto hereby irrevocably waive any and all rights that they may have against any other
party under the Original Shareholders’ agreements in exchange for their rights hereunder.
11.3 Governing Law. This Agreement shall be governed by and construed under the
substantive laws of the Hong Kong Special Administrative Region, without regard to the conflicts of
laws rules thereof.
11.4 Severability. If any provision of this Agreement is found to be invalid or
unenforceable, then such provision shall be construed, to the extent feasible, so as to render the
provision enforceable and to provide for the consummation of the transactions contemplated hereby
on substantially the same terms as originally set forth herein, and if no feasible interpretation
would save such provision, it shall be severed from the remainder of this Agreement, which shall
remain in full force and effect unless the severed provision is essential to the rights or benefits
intended by the parties. In such event, the parties shall use best efforts to negotiate, in good
faith, a substitute, valid and enforceable provision or agreement which most nearly effects the
parties’ intent in entering into this Agreement.
-30-
11.5 Third Parties. Nothing in this Agreement, express or implied, is intended to
confer upon any person, other than the parties hereto and their permitted successors and assigns
any rights or remedies under or by reason of this Agreement.
11.6 Successors and Assigns. Subject to the provisions of Section 6.1, the provisions
of this Agreement shall inure to the benefit of, and shall be binding upon, the successors and
permitted assigns of the parties hereto.
11.7 Interpretation; Captions. This Agreement shall be construed according to its fair
language. The rule of construction to the effect that ambiguities are to be resolved against the
drafting party shall not be employed in interpreting this Agreement. The captions to sections of
this Agreement have been inserted for identification and reference purposes only and shall not be
used to construe or interpret this Agreement. Unless otherwise expressly provided herein, all
references to Sections and Exhibits herein are to Sections and Exhibits of this Agreement.
11.8 Counterparts. This Agreement may be executed in counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the same instrument.
11.9 Adjustments for Share Splits, Etc. Wherever in this Agreement there is a
reference to a specific number of shares of Preferred Shares or Ordinary Shares of the Company,
then, upon the occurrence of any subdivision, combination or share dividend of the Preferred Shares
or Ordinary Shares, the specific number of shares so referenced in this Agreement shall
automatically be proportionally adjusted to reflect the effect on the outstanding shares of such
class or series of shares by such subdivision, combination or share dividend.
11.10 Aggregation of Shares. All Preferred Shares or Ordinary Shares held or acquired
by affiliated entities or persons (as defined in Rule 144 under the Securities Act) shall be
aggregated together for the purpose of determining the availability of any rights under this
Agreement.
11.11 Shareholders’ agreement to Control. If and to the extent that there are
inconsistencies between the provisions of this Agreement and those of the Memorandum and Articles,
the terms of this Agreement shall control as between the shareholders only. The parties agree to
take all actions necessary or advisable, as promptly as practicable after the discovery of such
inconsistency, to amend the Memorandum and Articles so as to eliminate such inconsistency.
11.12 Dispute Resolution.
(a) Negotiation Between Parties; Mediations. The parties agree to negotiate in good
faith to resolve any dispute between them regarding this Agreement. If the negotiations do not
resolve the dispute to the reasonable satisfaction of all parties within thirty (30) days, Section
11.12(b) shall apply.
(b) Arbitration. In the event the parties are unable to settle a dispute between them
regarding this Agreement in accordance with Section 11.12(a) above, such dispute shall be referred
to and finally settled by arbitration at Hong Kong International Arbitration Centre in accordance
with the UNCITRAL Arbitration Rules (the “UNCITRAL Rules”) in effect, which rules are deemed to be
incorporated by reference into this Section 11.12(b). The arbitration tribunal shall consist of
three arbitrators to be appointed according to the UNCITRAL Rules. The language of the arbitration
shall be English.
-31-
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-32-
IN WITNESS WHEREOF, the parties have caused their respective duly authorized
representatives to execute this Agreement as of the date and year first above written.
By the Company and the Existing Shareholders:
| Le Gaga Holdings Limited | Grow Grand Limited | |||||||||||||
| By: | /s/ Ma Xxxxx Xxxx | By: | /s/ Ma Xxxxx Xxxx | |||||||||||
| Name: | Ma Xxxxx Xxxx | Name: | Ma Xxxxx Xxxx | |||||||||||
| Title: | Director | Title: | Director | |||||||||||
| Magnetic Star Holdings Ltd. | Limewater Limited | |||||||||||||
By:
|
By: | |||||||||||||
| Name: | Xxxx Xx | Name: | Xxx Xx | |||||||||||
| Title: | Director | Title: | Authorised Signatory | |||||||||||
| Natural Eternity Limited | Valuetrue Investments Ltd. | |||||||||||||
| By: | By: | /s/ Xxxx Xx Xxx | ||||||||||||
| Name: | Law Kin Ip | Name: | Xxxx Xx Xxx | |||||||||||
| Title: | Director | Title: | Director | |||||||||||
| Win Seasons Finance Ltd. | Honeycomb Assets Management Ltd. | |||||||||||||
| By: | /s/ Xxxx Xxxxxxxx | By: | ||||||||||||
| Name: | Xxxx Xxxxxxxx | Name: | Fu Xxxx Xxx | |||||||||||
| Title: | Director | Title: | Director | |||||||||||
| Chic Holdings Limited | ||||||||||||||
| By: | ||||||||||||||
| Name: | Xx Xxx | Xx Xxxx | ||||||||||||
| Title: | Director | |||||||||||||
Signature Page to Shareholders Agreement
IN WITNESS WHEREOF, the parties have caused their respective duly authorized
representatives to execute this Agreement as of the date and year first above written.
By the Company and the Existing Shareholders:
| Le Gaga Holdings Limited | Grow Grand Limited | |||||||||||||
By:
|
By: | |||||||||||||
| Name: | Ma Xxxxx Xxxx | Name: | Ma Xxxxx Xxxx | |||||||||||
| Title: | Director | Title: | Director | |||||||||||
| Magnetic Star Holdings Ltd. | Limewater Limited | |||||||||||||
| By: | /s/ Xxxx Xx | By: | ||||||||||||
| Name: | Xxxx Xx | Name: | Xxx Xx | |||||||||||
| Title: | Director | Title: | Authorised Signatory | |||||||||||
| Natural Eternity Limited | Valuetrue Investments Ltd. | |||||||||||||
By:
|
By: | |||||||||||||
| Name: | Law Kin Ip | Name: | Xxxx Xx Xxx | |||||||||||
| Title: | Director | Title: | Director | |||||||||||
| Win Seasons Finance Ltd. | Honeycomb Assets Management Ltd. | |||||||||||||
By:
|
By: | |||||||||||||
| Name: | Xxxx Xxxxxxxx | Name: | Fu Xxxx Xxx | |||||||||||
| Title: | Director | Title: | Director | |||||||||||
| Chic Holdings Limited | ||||||||||||||
By: |
||||||||||||||
| Name: | Xx Xxx | Xx Xxxx | ||||||||||||
| Title: | Director | |||||||||||||
Signature Page to Shareholders’ agreement
IN WITNESS WHEREOF, the parties have caused their respective duly authorized
representatives to execute this Agreement as of the date and year first above written.
By the Company and the Existing Shareholders:
| Le Gaga Holdings Limited | Grow Grand Limited | |||||||||||||
By:
|
By: | |||||||||||||
| Name: | Ma Xxxxx Xxxx | Name: | Ma Xxxxx Xxxx | |||||||||||
| Title: | Director | Title: | Director | |||||||||||
| Magnetic Star Holdings Ltd. | Limewater Limited | |||||||||||||
| By: | By: | /s/ Xxx Xx | ||||||||||||
| Name: | Xxxx Xx | Name: | Xxx Xx | |||||||||||
| Title: | Director | Title: | Authorised Signatory | |||||||||||
| Natural Eternity Limited | Valuetrue Investments Ltd. | |||||||||||||
By:
|
By: | |||||||||||||
| Name: | Law Kin Ip | Name: | Xxxx Xx Xxx | |||||||||||
| Title: | Director | Title: | Director | |||||||||||
| Win Seasons Finance Ltd. | Honeycomb Assets Management Ltd. | |||||||||||||
By:
|
By: | |||||||||||||
| Name: | Xxxx Xxxxxxxx | Name: | Fu Xxxx Xxx | |||||||||||
| Title: | Director | Title: | Director | |||||||||||
| Chic Holdings Limited | ||||||||||||||
By: |
||||||||||||||
| Name: | Xx Xxx | Xx Xxxx | ||||||||||||
| Title: | Director | |||||||||||||
[Signature Page to Shareholders’ agreement]
IN WITNESS WHEREOF, the parties have caused their respective duly authorized
representatives to execute this Agreement as of the date and year first above written.
By the Company and the Existing Shareholders:
| Le Gaga Holdings Limited | Grow Grand Limited | |||||||||||||
By:
|
By: | |||||||||||||
| Name: | Ma Xxxxx Xxxx | Name: | Ma Xxxxx Xxxx | |||||||||||
| Title: | Director | Title: | Director | |||||||||||
| Magnetic Star Holdings Ltd. | Limewater Limited | |||||||||||||
By:
|
By: | |||||||||||||
| Name: | Xxxx Xx | Name: | Xxx Xx | |||||||||||
| Title: | Director | Title: | Authorised Signatory | |||||||||||
| Natural Eternity Limited | Valuetrue Investments Ltd. | |||||||||||||
| By: | /s/ Law Kin Ip | By: | ||||||||||||
| Name: | Law Kin Ip | Name: | Xxxx Xx Xxx | |||||||||||
| Title: | Director | Title: | Director | |||||||||||
| Win Seasons Finance Ltd. | Honeycomb Assets Management Ltd. | |||||||||||||
By:
|
By: | |||||||||||||
| Name: | Xxxx Xxxxxxxx | Name: | Fu Xxxx Xxx | |||||||||||
| Title: | Director | Title: | Director | |||||||||||
| Chic Holdings Limited | ||||||||||||||
By: |
||||||||||||||
| Name: | Xx Xxx | Xx Xxxx | ||||||||||||
| Title: | Director | |||||||||||||
Signature Page to Shareholders Agreement
IN WITNESS WHEREOF, the parties have caused their respective duly authorized
representatives to execute this Agreement as of the date and year first above written.
By the Company and the Existing Shareholders:
| Le Gaga Holdings Limited | Grow Grand Limited | |||||||||||||
By:
|
By: | |||||||||||||
| Name: | Ma Xxxxx Xxxx | Name: | Ma Xxxxx Xxxx | |||||||||||
| Title: | Director | Title: | Director | |||||||||||
| Magnetic Star Holdings Ltd. | Limewater Limited | |||||||||||||
By:
|
By: | |||||||||||||
| Name: | Xxxx Xx | Name: | Xxx Xx | |||||||||||
| Title: | Director | Title: | Authorised Signatory | |||||||||||
| Natural Eternity Limited | Valuetrue Investments Ltd. | |||||||||||||
By:
|
By: | |||||||||||||
| Name: | Law Kin Ip | Name: | Xxxx Xx Xxx | |||||||||||
| Title: | Director | Title: | Director | |||||||||||
| Win Seasons Finance Ltd. | Honeycomb Assets Management Ltd. | |||||||||||||
| By: | By: | /s/ Fu Xxxx Xxx | ||||||||||||
| Name: | Xxxx Xxxxxxxx | Name: | Fu Xxxx Xxx | |||||||||||
| Title: | Director | Title: | Director | |||||||||||
| Chic Holdings Limited | ||||||||||||||
By: |
||||||||||||||
| Name: | Xx Xxx | Xx Xxxx | ||||||||||||
| Title: | Director | |||||||||||||
Signature Page to Shareholders Agreement
IN WITNESS WHEREOF, the parties have caused their respective duly authorized
representatives to execute this Agreement as of the date and year first above written.
By the Company and the Existing Shareholders:
| Le Gaga Holdings Limited | Grow Grand Limited | |||||||||||||
By:
|
By: | |||||||||||||
| Name: | Ma Xxxxx Xxxx | Name: | Ma Xxxxx Xxxx | |||||||||||
| Title: | Director | Title: | Director | |||||||||||
| Magnetic Star Holdings Ltd. | Limewater Limited | |||||||||||||
By:
|
By: | |||||||||||||
| Name: | Xxxx Xx | Name: | Xxx Xx | |||||||||||
| Title: | Director | Title: | Authorised Signatory | |||||||||||
| Natural Eternity Limited | Valuetrue Investments Ltd. | |||||||||||||
By:
|
By: | |||||||||||||
| Name: | Law Kin Ip | Name: | Xxxx Xx Xxx | |||||||||||
| Title: | Director | Title: | Director | |||||||||||
| Win Seasons Finance Ltd. | Honeycomb Assets Management Ltd. | |||||||||||||
By:
|
By: | |||||||||||||
| Name: | Xxxx Xxxxxxxx | Name: | Fu Xxxx Xxx | |||||||||||
| Title: | Director | Title: | Director | |||||||||||
| Chic Holdings Limited | ||||||||||||||
| By: | /s/ Xx Xxx | |||||||||||||
| Name: | Xx Xxx | Xx Xxxx | ||||||||||||
| Title: | Director | |||||||||||||
Signature Page to Shareholders Agreement
IN WITNESS WHEREOF, the parties have caused their respective duly authorized
representatives to execute this Agreement as of the date and year first above written.
By the Company and the Existing Shareholders:
| Le Gaga Holdings Limited | Grow Grand Limited | |||||||||||||
By:
|
By: | |||||||||||||
| Name: | Ma Xxxxx Xxxx | Name: | Ma Xxxxx Xxxx | |||||||||||
| Title: | Director | Title: | Director | |||||||||||
| Magnetic Star Holdings Ltd. | Limewater Limited | |||||||||||||
By:
|
By: | |||||||||||||
| Name: | Xxxx Xx | Name: | Xxx Xx | |||||||||||
| Title: | Director | Title: | Authorised Signatory | |||||||||||
| Natural Eternity Limited | Valuetrue Investments Ltd. | |||||||||||||
By:
|
By: | |||||||||||||
| Name: | Law Kin Ip | Name: | Xxxx Xx Xxx | |||||||||||
| Title: | Director | Title: | Director | |||||||||||
| Win Seasons Finance Ltd. | Honeycomb Assets Management Ltd. | |||||||||||||
By:
|
By: | |||||||||||||
| Name: | Xxxx Xxxxxxxx | Name: | Fu Xxxx Xxx | |||||||||||
| Title: | Director | Title: | Director | |||||||||||
| Chic Holdings Limited | ||||||||||||||
| By: | /s/ Xx Xxxx | |||||||||||||
| Name: | Xx Xxx | Xx Xxxx | ||||||||||||
| Title: | Director | |||||||||||||
Signature Page to Shareholders Agreement
IN WITNESS WHEREOF, the parties have caused their respective duly authorized
representatives to execute this Agreement as of the date and year first above written.
By the BVI Subsidiaries and HK Subsidiaries:
| China Linong International Limited | Land V. Group Limited | |||||||||||
By:
|
/s/ Ma Xxxxx Xxxx | By: | /s/ Ma Xxxxx Xxxx | |||||||||
| Name: | Ma Xxxxx Xxxx | Name: | Ma Xxxxx Xxxx | |||||||||
| Title: | Director | Title: | Director | |||||||||
| Hong Kong Linong Limited | Land V. Limited | |||||||||||
By:
|
/s/ Ma Xxxxx Xxxx | By: | /s/ Ma Xxxxx Xxxx | |||||||||
| Name: | Ma Xxxxx Xxxx | Name: | Ma Xxxxx Xxxx | |||||||||
| Title: | Director | Title: | Director | |||||||||
Signature Page to Shareholders Agreement
IN WITNESS WHEREOF, the parties have caused their respective duly authorized representatives
to execute this Agreement as of the date and year first above written.
By the Founders:
/s/ Ma Xxxxx Xxxx |
|||
Ma Xxxxx Xxxx
|
Xxxx Xx |
Signature Page to Shareholders Agreement
IN WITNESS WHEREOF, the parties have caused their respective duly authorized representatives
to execute this Agreement as of the date and year first above written.
By the Founders:
| /s/ Luan Xx | |||
Xx Xxxxx Xxxx
|
Xxxx Xx |
Signature Page to Shareholders’ Agreement
IN WITNESS WHEREOF, the parties have caused their respective duly authorized representatives
to execute this Agreement as of the date and year first above written.
| By the PRC Subsidiaries: | ||||||||||||
| Land V. Limited (Fujian) | Linong Agriculture Technology Co., Ltd. (Shenzhen) | |||||||||||
By:
|
/s/ Ma Xxxxx Xxxx | By: | /s/ Ma Xxxxx Xxxx | |||||||||
| Name: | Ma Xxxxx Xxxx | Name: | Ma Xxxxx Xxxx | |||||||||
| Title: | Legal Representative | Title: | Legal Representative | |||||||||
| Land V. Agriculture Technology (Zhangzhou) Co., Ltd. | Linong Agriculture Technology Co., Ltd. (Quanzhou) | |||||||||||
By:
|
/s/ Ma Xxxxx Xxxx | By: | /s/ Ma Xxxxx Xxxx | |||||||||
| Name: | Ma Xxxxx Xxxx | Name: | Ma Xxxxx Xxxx | |||||||||
| Title: | Legal Representative | Title: | Legal Representative | |||||||||
| Fuzhou Land V. Group Co., Ltd. | Linong Agriculture Technology Co., Ltd. (Liaoyang) | |||||||||||
By:
|
/s/ Ma Xxxxx Xxxx | By: | ||||||||||
| Name: | Ma Xxxxx Xxxx | Name: | Xxxx Xx | |||||||||
| Title: | Legal Representative | Title: | Legal Representative | |||||||||
| Linong Agriculture Technology Co., Ltd. (Huizhou) | Land V. Limited (Zhangjiakou) | |||||||||||
By:
|
/s/ Ma Xxxxx Xxxx | By: | /s/ Ma Xxxxx Xxxx | |||||||||
| Name: | Ma Xxxxx Xxxx | Name: | Ma Xxxxx Xxxx | |||||||||
| Title: | Legal Representative | Title: | Legal Representative | |||||||||
Signature Page to Shareholders Agreement
IN WITNESS WHEREOF, the parties have caused their respective duly authorized representatives
to execute this Agreement as of the date and year first above written.
| By the PRC Subsidiaries: | ||||||||||||
| Land V. Limited (Fujian) | Linong Agriculture Technology Co., Ltd. (Shenzhen) | |||||||||||
By:
|
By: | |||||||||||
| Name: | Ma Xxxxx Xxxx | Name: | Ma Xxxxx Xxxx | |||||||||
| Title: | Legal Representative | Title: | Legal Representative | |||||||||
| Land V. Agriculture Technology (Zhangzhou) Co., Ltd. | Linong Agriculture Technology Co., Ltd. (Quanzhou) | |||||||||||
By:
|
By: | |||||||||||
| Name: | Ma Xxxxx Xxxx | Name: | Ma Xxxxx Xxxx | |||||||||
| Title: | Legal Representative | Title: | Legal Representative | |||||||||
| Fuzhou Land V. Group Co., Ltd. | Linong Agriculture Technology Co., Ltd. (Liaoyang) | |||||||||||
By:
|
By: | /s/ Xxxx Xx | ||||||||||
| Name: | Ma Xxxxx Xxxx | Name: | Xxxx Xx | |||||||||
| Title: | Legal Representative | Title: | Legal Representative | |||||||||
| Linong Agriculture Technology Co., Ltd. (Huizhou) | Land V. Limited (Zhangjiakou) | |||||||||||
By:
|
By: | |||||||||||
| Name: | Ma Xxxxx Xxxx | Name: | Ma Xxxxx Xxxx | |||||||||
| Title: | Legal Representative | Title: | Legal Representative | |||||||||
[Signature Page to Shareholders’ agreement]
| Xiamen Land V. Group Co., Ltd. | Linong Agriculture Technology Co., Ltd. (Shantou) | |||||||||||
By:
|
/s/ Ma Xxxxx Xxxx | By: | /s/ Ma Xxxxx Xxxx | |||||||||
| Name: | Ma Xxxxx Xxxx | Name: | Ma Xxxxx Xxxx | |||||||||
| Title: | Legal Representative | Title: | Legal Representative | |||||||||
| Liaoyang Liyuan Agricultural Products Co. Ltd. | Land V. Agriculture Technology (Ningde) Co., Ltd. | |||||||||||
By:
|
/s/ Ma Xxxxx Xxxx | By: | /s/ Ma Xxxxx Xxxx | |||||||||
| Name: | Ma Xxxxx Xxxx | Name: | Ma Xxxxx Xxxx | |||||||||
| Title: | Legal Representative | Title: | Legal Representative | |||||||||
Signature Page to Shareholders Agreement
IN WITNESS WHEREOF, the parties have caused their respective duly authorized representatives
to execute this Agreement as of the date and year first above written.
By Series A1 Holders:
| Grow Grand Limited |
||||
| By: | /s/ Ma Xxxxx Xxxx | |||
| Name: | Ma Xxxxx Xxxx | |||
| Title: | Director | |||
| Honeycomb Assets Management Limited |
||||
| By: | ||||
| Name: | Fu Xxxx Xxx | |||
| Title: | Director | |||
Signature Page to Shareholders Agreement
IN WITNESS WHEREOF, the parties have caused their respective duly authorized representatives
to execute this Agreement as of the date and year first above written.
By Series A1 Holders:
| Grow Grand Limited |
||||
| By: | ||||
| Name: | Ma Xxxxx Xxxx | |||
| Title: | Director | |||
| Honeycomb Assets Management Limited |
||||
| By: | /s/ Fu Xxxx Xxx | |||
| Name: | Fu Xxxx Xxx | |||
| Title: | Director | |||
Signature Page to Shareholders Agreement
IN WITNESS WHEREOF, the parties have caused their respective duly authorized representatives
to execute this Agreement as of the date and year first above written.
By Series A Holders and Series A1 Holders:
| Sequoia Capital China I, L.P. Sequoia Capital China Partners Fund I, L.P. Sequoia Capital China Principals Fund I, L.P. |
||||
| By: | Sequoia Capital Management Fund I, L.P. General Partner of Each | |||
| By: | SC China Holding Limited Its General Partner |
|||
| /s/ Xxxxx Xxxx | ||||
| Xxxxx Xxxx | ||||
| Authorised Signatory | ||||
Signature Page to Shareholders Agreement
IN WITNESS WHEREOF, the parties have caused their respective duly authorized representatives
to execute this Agreement as of the date and year first above written.
By Series B Holders:
| Sequoia Capital China Growth Fund I, L.P. Sequoia Capital China Growth Partners Fund I, L.P. Sequoia Capital China GF Principals Fund I, L.P. |
||||
| By: | Sequoia Capital Growth Fund Management I, L.P. General Partner of Each |
|||
| By: | SC China Holding Limited Its General Partner |
|||
| /s/ Xxxxx Xxxx | ||||
| Xxxxx Xxxx | ||||
| Authorised Signatory | ||||
Signature Page to Shareholders Agreement
IN WITNESS WHEREOF, the parties have caused their respective duly authorized representatives
to execute this Agreement as of the date and year first above written.
By Series B Holders:
| SIG China Investments One, Ltd |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President SIG Asia Investment LLLP authorised agent for SIG China Investments One, Ltd. |
|||
[Signature Page to Shareholders’ agreement]
IN WITNESS WHEREOF, the parties have caused their respective duly authorized representatives
to execute this Agreement as of the date and year first above written.
By Series B Holders:
| Xxxxxx International Pacven Xxxxxx Ventures VI, L.P. |
||||
| By: | /s/ Lip-Bu Tan | |||
| Name: | Lip-Bu Tan | |||
| Title: | Director of Pacven Xxxxxx Management VI, CO., Ltd. as General Partner of Pacven Xxxxxx Ventures VI, L.P. |
|||
| Pacven Xxxxxx Ventures Parallel VI, L.P. |
||||
| By: | /s/ Lip-Bu Tan | |||
| Name: | Lip-Bu Tan | |||
| Title: | Director of Pacven Xxxxxx Management VI, Co., Ltd. as General Partner of Pacven Xxxxxx Ventures Parallel VI, L.P. |
|||
Signature Page to Shareholders’ agreement
IN WITNESS WHEREOF, the parties have caused their respective duly authorized representatives
to execute this Agreement as of the date and year first above written.
By Series B Holders:
| Made in China Ltd. |
||||
| By: | /s/ Illegible | |||
| Name: | ||||
| Title: | ||||
Signature Page to Shareholders Agreement
IN WITNESS WHEREOF, the parties have caused their respective duly authorized
representatives to execute this Agreement as of the date and year first above written.
By the Investors:
| Grow Grand Limited | Magnetic Star Holdings Limited | |||||||||||
| By: | /s/ Ma Xxxxx Xxxx | By: | ||||||||||
| Name: | Ma Xxxxx Xxxx | Name: | Xxxx Xx | |||||||||
| Title: | Director | Title: | Director | |||||||||
| Honeycomb Assets Management Limited | Valuetrue Investments Limited | |||||||||||
| By: | By: | /s/ Xxxx Xx Xxx | ||||||||||
| Name: | Fu Xxxx Xxx | Name: | Xxxx Xx Xxx | |||||||||
| Title: | Director | Title: | Director | |||||||||
| Chic Holdings Limited | ||||||||||||
By: |
||||||||||||
| Name: | Xx Xxx | Xx Xxxx | ||||||||||
| Title: | Director | |||||||||||
Signature Page to Shareholders Agreement
IN WITNESS WHEREOF, the parties have caused their respective duly authorized representatives
to execute this Agreement as of the date and year first above written.
By the Investors:
| Grow Grand Limited | Magnetic Star Holdings Limited | |||||||||||
| By: | By: | /s/ Xxxx Xx | ||||||||||
| Name: | Ma Xxxxx Xxxx | Name: | Xxxx Xx | |||||||||
| Title: | Director | Title: | Director | |||||||||
| Honeycomb Assets Management Limited | Valuetrue Investments Limited | |||||||||||
By:
|
By: | |||||||||||
| Name: | Fu Xxxx Xxx | Name: | Xxxx Xx Xxx | |||||||||
| Title: | Director | Title: | Director | |||||||||
| Chic Holdings Limited | ||||||||||||
By: |
||||||||||||
| Name: | Xx Xxx | Xx Xxxx | ||||||||||
| Title: | Director | |||||||||||
[Signature Page to Shareholders’ agreement]
IN WITNESS WHEREOF, the parties have caused their respective duly authorized representatives
to execute this Agreement as of the date and year first above written.
By the Investors:
| Grow Grand Limited | Magnetic Star Holdings Limited | |||||||||||
By:
|
By: | |||||||||||
| Name: | Ma Xxxxx Xxxx | Name: | Xxxx Xx | |||||||||
| Title: | Director | Title: | Director | |||||||||
| Honeycomb Assets Management Limited | Valuetrue Investments Limited | |||||||||||
| By: | /s/ Fu Xxxx Xxx | By: | ||||||||||
| Name: | Fu Xxxx Xxx | Name: | Xxxx Xx Xxx | |||||||||
| Title: | Director | Title: | Director | |||||||||
| Chic Holdings Limited | ||||||||||||
By: |
||||||||||||
| Name: | Xx Xxx | Xx Xxxx | ||||||||||
| Title: | Director | |||||||||||
Signature Page to Shareholders Agreement
IN WITNESS WHEREOF, the parties have caused their respective duly authorized representatives
to execute this Agreement as of the date and year first above written.
By the Investors:
| Grow Grand Limited | Magnetic Star Holdings Limited | |||||||||||
By:
|
By: | |||||||||||
| Name: | Ma Xxxxx Xxxx | Name: | Xxxx Xx | |||||||||
| Title: | Director | Title: | Director | |||||||||
| Honeycomb Assets Management Limited | Valuetrue Investments Limited | |||||||||||
By:
|
By: | |||||||||||
| Name: | Fu Xxxx Xxx | Name: | Xxxx Xx Xxx | |||||||||
| Title: | Director | Title: | Director | |||||||||
| Chic Holdings Limited | ||||||||||||
| By: | /s/ Xx Xxx | |||||||||||
| Name: | Xx Xxx | Xx Xxxx | ||||||||||
| Title: | Director | |||||||||||
Signature Page to Shareholders Agreement
IN WITNESS WHEREOF, the parties have caused their respective duly authorized representatives
to execute this Agreement as of the date and year first above written.
By the Investors:
| Grow Grand Limited | Magnetic Star Holdings Limited | |||||||||||
By:
|
By: | |||||||||||
| Name: | Ma Xxxxx Xxxx | Name: | Xxxx Xx | |||||||||
| Title: | Director | Title: | Director | |||||||||
| Honeycomb Assets Management Limited | Valuetrue Investments Limited | |||||||||||
By:
|
By: | |||||||||||
| Name: | Fu Xxxx Xxx | Name: | Xxxx Xx Xxx | |||||||||
| Title: | Director | Title: | Director | |||||||||
| Chic Holdings Limited | ||||||||||||
| By: | /s/ Xx Xxxx | |||||||||||
| Name: | Xx Xxx | Xx Xxxx | ||||||||||
| Title: | Director | |||||||||||
Signature Page to Shareholders Agreement
IN WITNESS WHEREOF, the parties have caused their respective duly authorized representatives
to execute this Agreement as of the date and year first above written.
By the Investors:
| Sequoia Capital China I, L.P. Sequoia Capital China Partners Fund I, L.P. Sequoia Capital China Principals Fund I, L.P. |
||||
| By: | Sequoia Capital Management Fund I, L.P. General Partner of Each |
|||
| By: | SC China Holding Limited Its General Partner |
|||
| /s/ Xxxxx Xxxx | ||||
| Xxxxx Xxxx | ||||
| Authorised Signatory | ||||
| Sequoia Capital China Growth Fund I, L.P. Sequoia Capital China Growth Partners Fund I, L.P. Sequoia Capital China GF Principals Fund I, L.P. |
||||
| By: | Sequoia Capital Growth Fund Management I, L.P. General Partner of Each |
|||
| By: | SC China Holding Limited Its General Partner |
|||
| /s/ Xxxxx Xxxx | ||||
| Xxxxx Xxxx | ||||
| Authorised Signatory | ||||
Signature Page to Shareholders Agreement
IN WITNESS WHEREOF, the parties have caused their respective duly authorized representatives
to execute this Agreement as of the date and year first above written.
By the Investors:
| SIG China Investments One, Ltd. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President SIG Asia Investment LLLP authorized agent for SIG China Investments One, Ltd. |
|||
Signature Page to Shareholders Agreement
IN WITNESS WHEREOF, the parties have caused their respective duly authorized representatives
to execute this Agreement as of the date and year first above written.
By the Investors:
| Xxxxxx International Pacven Xxxxxx Ventures VI, L.P. |
||||
| By: | /s/ Lip-Bu Tan | |||
| Name: | Lip-Bu Tan | |||
| Title: | Director of Pacven Xxxxxx Management VI, CO., Ltd. as General Partner of Pacven Xxxxxx Ventures VI, L.P. |
|||
| Pacven Xxxxxx Ventures Parallel VI, L.P. |
||||
| By: | /s/ Lip-Bu Tan | |||
| Name: | Lip-Bu Tan | |||
| Title: | Director of Pacven Xxxxxx Management VI, Co., Ltd. as General Partner of Pacven Xxxxxx Ventures Parallel VI, L.P. |
|||
Signature Page to Shareholders’ agreement
IN WITNESS WHEREOF, the parties have caused their respective duly authorized representatives
to execute this Agreement as of the date and year first above written.
By the Investors:
| Made In China Ltd. |
||||
| By: | /s/ Illegible | |||
| Name: | ||||
| Title: | ||||
Signature Page to Shareholders Agreement
LIST OF EXHIBITS
Exhibit A
|
Schedule of PRC Subsidiaries | |
Exhibit B
|
Schedule of Existing Shareholders | |
Exhibit C
|
Schedule of Founders | |
Exhibit D
|
Schedule of Series A Holders | |
Exhibit E
|
Schedule of Series A1 Holders | |
Exhibit F
|
Schedule of Series B Holders | |
Exhibit G
|
Schedule of Series B1 Holders | |
Exhibit H
|
Notices |
-49-
EXHIBIT A
SCHEDULE OF PRC SUBSIDIARIES
| 1. | Land V. Limited (Fujian) | |
| 2. | Linong Agriculture Technology Co., Ltd. (Shenzhen) | |
| 3. | Land V. Agriculture Technology (Zhangzhou) Co., Ltd. | |
| 4. | Linong Agriculture Technology Co., Ltd. (Quanzhou) | |
| 5. | Linong Agriculture Technology Co., Ltd. (Liaoyang) | |
| 6. | Fuzhou Land V. Group Co., Ltd. | |
| 7. | Land V. Limited (Zhangjiakou) | |
| 8. | Linong Agriculture Technology Co., Ltd. (Huizhou) | |
| 9. | Xiamen Land V. Group Co., Ltd. | |
| 10. | Linong Agriculture Technology Co., Ltd. (Shantou) | |
| 11. | Land V. Agriculture Technology (Ningde) Co., Ltd. | |
| 12. | Liaoyang Liyuan Agricultural Products Co. Ltd. |
-50-
EXHIBIT B
SCHEDULE OF EXISTING SHAREHOLDERS
| Existing Shareholder | No. of Ordinary Shares | |||
Grow Grand Limited |
613,000,000 | |||
Magnetic Star Holdings Ltd. |
60,000,000 | |||
Limewater Limited |
60,000,000 | |||
Natural Eternity Limited |
60,000,000 | |||
Valuetrue Investments Ltd. |
77,000,000 | |||
Win Seasons Finance Ltd. |
60,000,000 | |||
Honeycomb Assets Management Ltd. |
70,000,000 | |||
Chic Holdings Limited |
25,000,000 | |||
Xx Xxxx |
25,000,000 | |||
TOTAL |
1,050,000,000 | |||
-51-
EXHIBIT C
SCHEDULE OF FOUNDERS
| 1. | Ma Xxxxx Xxxx | |
| 2. | Xxxx Xx |
-52-
EXHIBIT D
SCHEDULE OF SERIES A HOLDERS
| Series A Holder | No. of Series A Shares | |||
Sequoia Capital China I, L.P. |
169,380,000 | |||
Sequoia Capital China Partners Fund I, L.P. |
19,460,000 | |||
Sequoia Capital China Principals Fund I, L.P. |
26,220,000 | |||
TOTAL |
215,060,000 | |||
-53-
EXHIBIT E
SCHEDULE OF SERIES A1 HOLDERS
| Series A1 Holder | No. of Series A1 Shares | |||
Sequoia Capital China I, L.P. |
31,784,000 | |||
Sequoia Capital China Partners Fund I, L.P. |
3,652,000 | |||
Sequoia Capital China Principals Fund I, L.P. |
4,919,000 | |||
Grow Grand Limited |
24,213,000 | |||
Honeycomb Assets Management Limited |
16,142,000 | |||
TOTAL |
80,710,000 | |||
-54-
EXHIBIT F
SCHEDULE OF SERIES B HOLDERS
| Series B Holder | No. of Series B Shares | |||
Sequoia Capital China Growth Fund I, L.P. |
65,796,000 | |||
Sequoia Capital China Growth Partners Fund I, L.P. |
1,554,000 | |||
Sequoia Capital China GF Principals Fund I, L.P. |
8,070,000 | |||
SIG China Investments One, Ltd. |
130,270,000 | |||
Xxxxxx International |
||||
Pacven Xxxxxx Ventures VI, L.P. |
89,056,000 | |||
Pacven Xxxxxx Ventures Parallel VI, L.P. |
6,934,000 | |||
Made In China Ltd. |
27,420,000 | |||
TOTAL |
329,100,000 | |||
-55-
EXHIBIT G
SCHEDULE OF SERIES B1 HOLDERS
| Series B1 Holder | No. of Series B1 Shares | |||
Grow Grand Limited |
30,105,000 | |||
Magnetic Star Holdings Limited |
2,834,000 | |||
Honeycomb Assets Management Limited |
4,070,000 | |||
Valuetrue Investments Limited |
3,638,000 | |||
Chic Holdings Limited |
9,683,000 | |||
Xx Xxxx
|
1,181,000 | |||
SIG China Investments One, Ltd. |
6,155,000 | |||
Xxxxxx International |
||||
Pacven Xxxxxx Ventures VI, L.P. |
4,207,000 | |||
Pacven Xxxxxx Ventures Parallel VI, L.P. |
328,000 | |||
Sequoia Capital China Growth Fund I, L.P. |
13,633,000 | |||
Sequoia Capital China Growth Partners Fund I, L.P. |
325,000 | |||
Sequoia Capital China GF Principals Fund I, L.P. |
1,672,000 | |||
Made In China Ltd. |
1,296,000 | |||
TOTAL |
79,127,000 | |||
-56-
EXHIBIT H
NOTICES
If to the Company, the Subsidiaries or Founders:
Attention: Mr. Ma Xxxxx Xxxx
Address: 1602, Tower 1, the Xxxxxxxxxx Xxxxxxxxx, 0 Xxxxxxxxxx Xxxx, Xxxx Xxx, Xxxxxxx, Xxxx Xxxx
Telephone: (000) 0000-0000
Facsimile: (000) 0000-0000
If to Grow Grand Limited:
Attention: Mr. Ma Xxxxx Xxxx
Address: Xxxx X, 00/X, Xxxxx 0, Xxxxx Xxxxxxxxx, 0 Xxxx Xxx Xxxx, Xxxx Xxx, Xxxxxxx, Xxxx Xxxx
Telephone: (000) 0000-0000
Facsimile: (000) 0000-0000
If to Magnetic Star Holdings Limited:
Attention: Xx. Xxxx Xx
Address: Xxxxx 00, 00 Xxxxxxx Xxx Xxxx, Xxxx Xxxx
Telephone: (000) 0000-0000
Facsimile: (000) 0000-0000
If to Limewater Limited:
Attention: XIA, Yu
Address: Xxxx X, Xxx 0, Xxx 00 Xxxxxxxx, Xxx Xx Xxx Xxxx, Xxx Xx, X.X., Xxxx Xxxx
Telephone: (000) 0000-0000
Facsimile: (000) 0000-0000
If to Natural Eternity Limited:
Attention: Law Kin Ip
Address: Xxxx X, 0/X, Xxxxx 0, Xxxxxxx Villas, 00 Xx Xxxxx Xxxx, Xxxxxxx, Xxxx Xxxx
Telephone: (000) 0000-0000
Facsimile: (000) 0000-0000
-57-
If to Honeycomb Assets Management Limited:
Attention: Fu Xxxx Xxx
Address: 0X Xxxxxxxx, 00 Xxxxxxx Xxx Xxxx, Xxxx Xxxx
Telephone: (000) 0000-0000
Facsimile: (000) 0000-0000
If to Win Seasons Finance Ltd:
Attention: Xxxxxx Xxxx
Address: 00 Xxxxxxx Xxxx, Xxxxxxx Xxxxxxx, Xxx X0, Xxxxxxx HK
Telephone: (000) 0000-0000
Facsimile: (000) 0000-0000
If to Valuetrue Investments Limited:
Attention: Xxxx Xx Xxx
Address: Xxxx X, 00/X, Xxxxx 0, Xxxxx Xxxxxxxxx, 0 Xxxx Xxx Xxxx, Xxxx Xxx, Xxxxxxx, Xxxx Xxxx
Telephone: (000) 0000-0000
Facsimile: (000) 0000-0000
If to Chic Holdings Limited:
Attention: Lei Xxx Xxxxx
Address: Suite 1203, Garden East, 222 Queen’s Road, East Wanchai, Hong Kong
Telephone: (000) 0000-0000
Facsimile: (000) 0000-0000
If to Xx Xxxx:
Address: 106 Pak To Avenue, Portofino, Clear Water Bay, Hong Kong
Telephone: (000) 0000-0000
Facsimile: (000) 0000-0000
If to Sequoia Capital China I, L.P., Sequoia Capital China Partners Fund I, L.P., Sequoia Capital
China Principals Fund I, L.P., Sequoia Capital China Growth Fund I, Sequoia Capital China Growth
Partners Fund I, L.P. and Sequoia Capital China GF Principals Fund I, L.P.:
-58-
Attention: Xxxx Xxxx
Address: Sequoia Capital China, Suite 2215, 22/F, Two Xxxxxxx Xxxxx, 00 Xxxxxxxxx, Xxxx Xxxx
Telephone: (000) 0000-0000
Facsimile: (000) 0000-0000
If to SIG:
Attention: Xxxxxxx X. Xxxxxx
Address: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, XX 00000, XXX
Telephone: (1) (000) 0000000
Facsimile: (1) (000) 0000000
With a copy to:
Attention: Xxx Xxxx
Address: Xxxxx 0000-00, Xxxxxxxxx Xxxxxx, 000 Xx Xxx Xxxx, Xxxxxxxx, 000000, X.X. Xxxxx
Telephone: (00 00) 00000000
Facsimile: (00 00) 00000000
If to Xxxxxx:
Attention: Xxxxxxx Xxxx
Address: Xxx Xxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, XX 00000, XXX
Telephone: (0) 000-000-0000
Facsimile: (0) 000-000-0000
If to Made In China Ltd.:
Attention: Xxxxxxx Xx
Address: 0xx Xxxxx,000 Xxxxx Xxxx, Xxxxxxxx 201204 P.R.China
Tel: (00 00) 00000000-0000
Facsimile: (00 00) 0000-0000
-59-
