Agreement ACM Research (Shanghai), Inc. And [Investor] June 2019
Exhibit 10.02
ACM Research (Shanghai), Inc.
And
[Investor]
June 2019
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Contents
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Article
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1. Listing of the Company
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2
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2. Share Repurchase
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3
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3. Restriction on Investors’
Shareholding Ratio
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3
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4. Employee Options Plan
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3
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5. Liability for Breach and
Indemnity
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4
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6. Confidentiality
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4
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7. Notice
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4
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8. Governing Law & Settlement of
Dispute
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4
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9. Miscellaneous
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5
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[stamp]
This
Agreement (hereafter referred to as “this Agreement”) is signed by and
between the following parties in Shanghai on June 12,
2019:
A.
ACM Research (Shanghai), Inc. (hereafter
referred to as the “Company”), a limited liability
company (Uniform Social Credit Code: 91310000774331663A)
incorporated and effectively existing in accordance with the laws
of the People’s Republic of China (hereafter referred to as
“China”, which,
for the purpose of this Agreement, excludes the Hong Kong Special
Administrative Region, the Macau Special Administrative Region and
Taiwan Region), having the registered address at Xxxxxxxx 0, 0000
Xxx Xxx Xxxx, Xxxxx (Shanghai) Pilot Free Trade Zone;
and
B.
[Investor] (hereafter referred to as the
“Investor”), a
[form of entity] (Uniform Social Credit Code: [●])
established and existing in accordance with the laws of China,
having the registered address at [address].
The
Investor and the Company are separately referred to as
“one party” and
collectively referred to as “both parties”.
WHEREAS:
1.
On the signing date
of this Agreement, the Company and the Investor signed relevant
capital increase agreement (hereafter referred to as
“Capital Increase
Agreement”), stipulating that the Investor will
contribute part of the additional registered capital of the
Company, or RMB [amount of additional registered capital subscribed
by the Investor], in accordance with the terms and conditions set
forth by the Capital Increase Agreement;
2.
After completion of
the Current Investment stated in the Capital Increase Agreement (as
defined in the Capital Increase Agreement), ACM Research, Inc.
(hereafter referred to as the “Controlling Shareholder” or
“ACMR”) will
hold 95.99% of the equities of the Company, all the investors (as
defined in the Capital Increase Agreement), including the Investor,
will hold 3.34% of the equities of the Company, and the Investor
will hold [●]% of the equities of the Company.
Both
parties have now agreed to enter into this Agreement and further
stipulate some affairs as follows:
1.
Listing of the
Company
Both
parties agree that they will exhaust respective every possible
effort to cause and ensure the Company’s completion of the
initial public offering and trading at the Science and Technology
Innovation Board of Shanghai Stock Exchange (hereafter referred to
as the “Exchange”) (hereafter referred to as
“Listing”, subject to formal listing and trading of the
Company shares at the Exchange) within three (3) years after
completion of the Current Investment, and ensure that the valuation
of the Company at the time of listing (namely, valuation of the
Company in the listing plan as approved by the Exchange and/or
China Securities Regulatory Commission (hereafter referred to as
“CSRC”)) will be
no lower than RMB 5,150 million (unless all the shareholders of the
Company agree in one accord to adjust the aforesaid
valuation).
Notwithstanding the
aforesaid provision, if the Company has not finally realized the
listing but the CSRC has decided to consent with the registration
of the Company’s listing application upon the expiration of
the three-year period as of the completion date of Current
Investment (or any other date agreed by the Company, the
Controlling Shareholder and all investors, including the Investor,
in writing and in one accord after mutual consultation, hereafter
referred to as the “Estimated
Completion Date of Listing”), the Investor agrees and
understands that it will not enjoy the right to require a share
repurchase by the Company as described in Article 2
hereto.
Both
parties further confirm that the Investor shall not sell or
transfer the Company shares it holds in whatever form within one
(1) year after the listing date of the Company (or a longer period
stipulated by Laws of China or explicitly required by the CSRC or
the Exchange). After expiration of the aforesaid period, (i) the
Company shares held by the Investor will be tradable without
restriction in relevant market, except that shares are forbidden
for sale pursuant to mandatory provisions of the Laws of China;
(ii) the total common shares issued by the Company shall satisfy
minimum public circulation requirement for relevant market, and the
aforesaid common shares will be tradable without restriction,
except that shares are forbidden for sale pursuant to mandatory
provisions of the Laws of China.
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2.
Share
Repurchase
2.1
Repurchase
Options
Where
the Company fails to realize the listing until the Estimated
Completion Date of Listing, the Investor shall, within fifteen (15)
days (hereafter referred to as “Exercise Period”) as of the
Estimated Completion Date of Listing (or date extended in
accordance with the provision below), be entitled to notify the
Company (hereafter referred to as “Repurchase Notice”) in writing,
requiring the Company (to the extent allowed by Laws of China)
repurchase all or part of the Company shares then held by the
Investor (hereafter referred to as “Proposed Repurchase Shares”) at
such price and in such manner as is described in Article
2.2.
Notwithstanding the
preceding provision, if the CSRC has received the registration
application document submitted by the Company and is reviewing the
document until the Estimated Completion Date of Listing, both
parties agree that the starting time of the Exercise Period of the
Investor as set forth by Article 2.1 herein shall be extended to
the date when the CSRC decides not to register the Company’s
registration application or the date when the Company withdraws the
registration application document for the current
listing.
2.2
Repurchase Price
and Method
Unless
both parties agree otherwise in writing, the price at which the
Company will repurchase the Proposed Repurchase Shares from the
Investor in accordance with Article 2.1 above shall be the same as
the price of the Current Investment (that is, RMB13 for RMB1 of the
registered capital).
To the
extent allowed by Laws of China, the Company shall sign
corresponding share repurchase agreement with the Investor,
complete the repurchase of the Proposed Repurchase Shares held by
the Investor in the form of capital reduction, and pay the
repurchase price in full amount for the Proposed Repurchase Shares
at the aforesaid price to the Investor within ninety (90) days
after the Investor sends a Repurchase Notice (or a longer period
agreed by both parties in one accord). The Company shall, within
the period prescribed by Laws of China and the Share Repurchase
Agreement, complete relevant change registration and filing
procedure reflecting the repurchase of the Proposed Repurchase
Shares, and the Investor shall take any necessary action (including
signing all necessary documents) to help the Company complete
relevant procedure.
2.3
The Investor
further agrees that where the Company fails to realize the listing
until the Estimated Completion Date of Listing (and such failure is
not attributable to the Company), and in this event, the Company
shall also have the right to notify the Investor in writing within
the Exercise Period set forth in Article 2.1 and repurchase all or
part of the Company shares then held by the Investor at such price
and in such manner as is described in Article 2.2. In this case,
the Investor shall take any necessary action (including signing all
necessary documents) to help the Company complete relevant
procedure.
3.
Restriction
on Investors’ Shareholding Ratio
The
Investor agrees and acknowledges that unless obtaining a prior
written consent from the Company, the number of the Company’s
shares or equities (including shares acquired by the Investor from
the secondary market after the Company’s listing) held by the
Investor (and its related party and/or persons acting in concert)
directly or indirectly shall not exceed 5% of the total registered
capital/shares of the Company in whatever situation.
4.
Employee
Options Plan
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For the
purpose of stimulating employees of the Company, the Investor will
agree and acknowledge that after completing the Current Investment,
the Company will further determine the options incentive plan
(hereafter referred to as the “Employee Options Plan”) declared
by the Company before listing and implementing after listing in
accordance with the Listing Rules of Shanghai Stock Exchange for
Science and Technology Innovation Board, other applicable laws and
regulations pertaining to listing. Subject to concrete provisions
of applicable laws and regulations, the total size of the Employee
Options Plan shall be no higher than RMB 13,906,000 and have an
award price of RMB 10.4/share. For the aforesaid purpose, the
Investor shall agree to take any necessary action (including
without limitation to voting on and adopting relevant proposal,
helping sign relevant necessary document and helping complete all
necessary registration procedures in relevant internal resolution
procedure of the Company) and cooperate with the Company to cause
the formulation and implementation of concrete scheme for the
Employee Options Plan.
5.
Liability
for Breach and Indemnity
Where
either party violates any article hereunder, the defaulting party
shall be obligated to indemnify the loss of the other party arising
out of such default, and the damage indemnity will not affect the
other rights of the innocent party hereunder.
6.
Confidentiality
Without
the prior written consent from the other party, either party shall
not, and cause respective related party, advisor and representative
not to, disclose this Agreement and any article hereof to any third
person, unless (i) any party or related party requires
corresponding disclosure in accordance with relevant applicable
laws/regulations or regulatory requirement; (ii) either party makes
necessary disclosure to its agent or advisor on condition that such
agent and advisor will keep confidential the aforesaid disclosure
content.
7.
Notice
7.1
When sending a
notice under or in relation to this Agreement, either party hereto
shall send it in writing to the following address, fax number or
email address of the other party (or any other address, fax number
or email address of the other party indicated through similar
notice):
Company
Address: Xxxxxxxx
0, 0000 Xxx Xxx Xxxx, Xxxxxx New District, Shanghai
Municipality
Email:
xxxxxxx.xxx@xxxxxxx.xxx
Attention: Xxx
Xxxxxxx
[Investor]
Address:
Email:
Attention:
7.2
If it is sent by
fax or email, it shall be considered as delivered on the first
working day after the sending date, but the notice shall be
immediately delivered to the recipient for confirmation with the
next day delivery service of the generally accepted express
delivery company. If it is sent by fax or email, it shall be
considered as delivered on the first working day after the sending
date, but the notice shall be immediately delivered to the
recipient for confirmation with the next day delivery service of
the generally accepted express delivery company.
8.
Governing
Law & Settlement of Dispute
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8.1
The execution,
validity, interpretation, performance and settlement of disputes
with respect to this Agreement shall be governed by the Laws of
China.
8.2
The default,
termination or invalidity with respect to this Agreement, or any
dispute arising out of or in connection with this Agreement shall
be submitted to Shanghai International Arbitration Center for
arbitration in accordance with then effective arbitration rules of
the Center in Shanghai, and the arbitration language is
Chinese. The arbitration
ruling made by the arbitration court shall be final and legally
binding upon both parties hereto.
9.
Miscellaneous
9.1
Validity and
Termination
This
Annotation shall take effect as of the Completion Date under the
Capital Increase Agreement after duly signed by both parties and be
automatically terminated on the date when the Company formally
submits the listing registration application document to the
Exchange.
9.2
Modification
Any
revision or modification made to this Agreement shall take effect
only after both parties sign a written agreement.
9.3
Assignment
Without
the written consent from the other two parties, neither party shall
transfer any of its rights or obligations under this
Agreement.
9.4
Severability
Where
any provision of this Agreement is declared illegal, invalid or
unenforceable in whole or in part under applicable laws, such
provision or part shall, to such extent, not be considered as part
of this Agreement, and not affect the legality, validity and
enforceability of the remaining part of this Agreement. Both
parties shall negotiate with one another to replace the provision
regarded as deleted with a provision that is legitimate, valid,
acceptable and the most closest to the initial purpose of both
parties under this Agreement.
9.5
Waiver
Any
party’s failure to exercise, or delay in the exercise of, any
right, power or privilege under this Agreement shall not be
regarded as a waiver of such right, power or privilege, while the
single or partial exercise of any right, power or privilege shall
not hinder the exercise of any other right, power or
privilege.
9.6
Language and
counterparts
This
Agreement is made in Chinese in two (2) counterparts, which is held
by one (1) counterpart respectively.
[No
text below]
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[This
page has no text and is a signing page for the
Agreement]
This
Agreement is signed by the duly authorized representatives of both
parties on the date indicated on the first page of this
Agreement.
ACM Research (Shanghai), Inc. (Stamp)
Signature:
[signature]
Name:
XXX XXXX
Title:
Legal Representative
[stamp] ACM Research (Shanghai), Inc.
[stamp:]
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[This
page has no text and is a signing page for the
Agreement]
This
Agreement is signed by the duly authorized representatives of both
parties on the date indicated on the first page of this
Agreement.
[Investor]
Signature:
Name:
Title:
Legal Representative or Authorized Representative
[stamp]
[stamp:]
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