UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16 OF
THE SECURITIES EXCHANGE ACT OF 1934
For the month of February 2016
Commission File Number: 001-34866
CHINA MING
YANG WIND POWER GROUP LIMITED
Jianye Road, Mingyang Industry Park
National Hi-Tech Industrial Development Zone
Zhongshan, Guangdong 528437
Peoples Republic of China
(Address of principal executive offices)
Indicate by check mark whether
the registrant files or will file annual reports under cover Form 20-F or Form 40-F.
Form 20-F x Form 40-F ¨
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): ¨
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T
Rule 101(b)(7): ¨
CHINA MING YANG WIND POWER GROUP LIMITED
Form 6-K
EXHIBIT INDEX
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Exhibit No. |
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Description |
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Exhibit 99.1 |
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Press release dated February 3, 2016 |
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Exhibit 99.2 |
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Agreement and Plan of Merger among Zhongshan Ruisheng Antai Investment Co., Ltd.,
Regal Concord Limited, Regal Ally Limited and China Ming Yang Wind Power Group Limited dated February 2, 2016 |
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Exhibit 99.3 |
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Limited Guarantee, dated as of February 2, 2016, by Mr. Chuanwei Zhang in favor of China Ming Yang Wind Power Group Limited |
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Exhibit 99.4 |
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Limited Guarantee, dated as of February 2, 2016, by Shanghai Dajun Guancheng Capital Fund in favor of China Ming Yang Wind Power Group Limited |
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Exhibit 99.5 |
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Limited Guarantee, dated as of February 2, 2016, by Guangzhou Huifu Kaile Investment (L.P.) in favor of China Ming Yang Wind Power Group Limited |
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned, thereunto duly authorized.
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CHINA MING YANG WIND POWER GROUP LIMITED |
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By: |
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/s/ Chuanwei
Zhang |
Name: |
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Chuanwei Zhang |
Title: |
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Chairman of the Board of Directors,
Chief Executive Officer |
Date: February 3, 2016
3
Exhibit 99.1
Ming Yang Enters Into Definitive Merger Agreement For Going Private Transaction
ZHONGSHAN, China, February 3, 2016 - China Ming Yang Wind Power Group Limited (Ming Yang or the Company) (NYSE: MY), a
leading wind energy solution provider in China, today announced that it has entered into a definitive merger agreement (the Merger Agreement) on February 2, 2016 pursuant to which the Company will be acquired by a consortium of
investors (the Buyer Consortium), including Mr. Chuanwei Zhang , the Chairman and Chief Executive Officer of the Company, in an all-cash transaction which values the Companys equity at approximately US$408 million.
Pursuant to the terms of the Merger Agreement, at the effective time of the merger, each of the Companys ordinary shares, par value US$0.001 per share,
issued and outstanding immediately prior to the effective time of the merger (the Shares) will be cancelled and cease to exist in exchange for the right to receive US$2.51 in cash without interest, and each American Depositary Share
(ADS) of the Company, every ADS representing one Share, will be cancelled in exchange for the right to receive US$2.51 in cash without interest, except for (a) certain Shares (including Shares represented by ADSs) owned by
Mr. Chuanwei Zhang and certain affiliates and certain other existing shareholders of the Company, which will be rolled over in the transaction, and (b) Shares held by shareholders who have validly exercised and not effectively withdrawn or
lost their rights to dissent from the merger pursuant to Section 238 of the Companies Law of the Cayman Islands (the Dissenting Shares), which will be cancelled and cease to exist in exchange for the right to receive the payment of
fair value of the Dissenting Shares in accordance with Section 238 of the Companies Law of the Cayman Islands. Shares reserved (but not yet allocated) by the Company for issuance and allotment upon exercise of any share incentive awards issued
under the Companys employee share incentive plans will be cancelled for no consideration at the effective time of the merger.
The merger
consideration represents a premium of 13.1% to the closing price of the Companys ADSs on October 30, 2015, the last trading day prior to the Companys announcement of its receipt of a going-private proposal, and a premium
of 19.3% to the volume weighted average closing price of the Companys ADSs during the 30 trading days prior to its receipt of a going-private proposal. The investor consortium includes Mr. Chuanwei Zhang and certain of his
affiliates, Shanghai Dajun Guancheng Capital Fund and Guangzhou Huifu Kaile Investment (L.P.).
The consortium intends to fund the merger through a
combination of cash contributions from the investors pursuant to equity commitment letters in an amount of US$124 million, and debt financing in an amount up to US$106 million, pursuant to a debt commitment letter provided by China Construction Bank
Guangdong Branch.
The Companys board of directors (the Board), acting upon the unanimous recommendation of a committee of independent
and disinterested directors established by the Board (the Special Committee), approved the Merger Agreement and the merger and resolved to recommend that the Companys shareholders vote to authorize and approve the Merger Agreement
and the merger. The Special Committee negotiated the terms of the Merger Agreement with the assistance of its independent financial and legal advisors.
The merger, which is currently expected to close during the first half of 2016, is subject to customary closing conditions including the approval of the
Merger Agreement by an affirmative vote of holders of Shares representing at least two-thirds of the voting power of the Shares present and voting in person or by proxy at a meeting of the Companys shareholders which will be convened to
consider the approval of the merger agreement and the merger. Mr. Chuanwei Zhang and certain rollover shareholders have agreed to vote all of the Shares they beneficially own, which represent approximately 44% of the voting rights attached
to the outstanding Shares as of the date of the Merger Agreement, in favor of the authorization and approval of the Merger Agreement and the merger. If completed, the merger will result in the Company becoming a privately-held company and its ADSs
will no longer be listed on the New York Stock Exchange.
The Company will prepare and file with the U.S. Securities and Exchange Commission (the SEC) a
Schedule 13E-3 transaction statement, which will include a proxy statement of the Company. The Schedule 13E-3 will include a description of the Merger Agreement and contain other important information about the merger, the Company and the other
participants in the merger.
In connection with the merger, Duff & Phelps Securities, LLC is serving as financial advisor to the Special
Committee; Skadden, Arps, Slate, Meagher & Flom LLP is serving as U.S. legal counsel to the Special Committee; Maples and Calder is serving as Cayman Islands legal counsel to the Special Committee; and Fenwick & West LLP is serving
as U.S. legal counsel to the Company.
Simpson, Thacher & Bartlett LLP is serving as U.S. legal counsel to the Buyer Consortium and Travers,
Thorp Alberga is serving as Cayman Islands legal counsel to the Buyer Consortium.
Additional Information about the Transaction
In connection with the merger, the Company will prepare and mail a proxy statement that will include a copy of the Merger Agreement to its shareholders. In
addition, certain participants in the merger will prepare and mail to the Companys shareholders a Schedule 13E-3 transaction statement that will include the proxy statement. These documents will be filed with or furnished to the SEC. INVESTORS
AND SHAREHOLDERS ARE URGED TO READ CAREFULLY AND IN THEIR ENTIRETY THESE MATERIALS AND OTHER MATERIALS FILED WITH OR FURNISHED TO THE SEC WHEN THEY BECOME AVAILABLE, AS THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE COMPANY, THE TRANSACTIONS
CONTEMPLATED BY THE MERGER AGREEMENT AND RELATED MATTERS. In addition to receiving the proxy statement and Schedule 13E-3 transaction statement by mail, shareholders also will be able to obtain these documents, as well as other filings containing
information about the Company, the merger and related matters, without charge, from the SECs website (http://www.sec.gov) or at the SECs public reference room at 100 F Street, NE, Room 1580, Washington, D.C. 20549. In addition, these
documents can be obtained, without charge, by contacting the Company at the following address and/or phone number:
Jianye Road, Mingyang Industry Park
National Hi-Tech Industrial Development Zone
Zhongshan,
Guangdong 528437
Peoples Republic of China
Tel:
+86-760-2813-8698
The Company and certain of its directors, executive officers and other members of management and employees may, under SEC rules, be
deemed to be participants in the solicitation of proxies from the Companys shareholders with respect to the merger. Information regarding the persons or entities who may be considered participants in the solicitation of
proxies will be set forth in the proxy statement and Schedule 13E-3 transaction statement relating to the merger when it is filed with the SEC. Additional information regarding the interests of such potential participants will be included in the
proxy statement and Schedule 13E-3 transaction statement and the other relevant documents filed with the SEC when they become available.
This
announcement is neither a solicitation of proxy, an offer to purchase nor a solicitation of an offer to sell any securities and it is not a substitute for any proxy statement or other materials that may be filed with or furnished to the SEC should
the merger proceed.
About China Ming Yang Wind Power Group Limited
China Ming Yang Wind Power Group Limited (NYSE: MY) is a leading wind energy solution provider in China, focusing on designing, manufacturing, selling and
servicing megawatt-class wind turbines, including cutting-edge SCD (Super Compact Drive) solutions, and providing post-sales value-added maintenance and technology upgrade services to wind farm owners. Ming Yang cooperates with aerodyne
Energiesysteme, one of the worlds leading wind turbine design firms based in Germany, to co-develop wind turbines. In terms of newly installed capacity, Ming Yang was a top 10 wind turbine manufacturer worldwide and the largest non-state owned
wind turbine manufacturer in China in 2015. For more information, please visit Ming Yangs investor relations website at http://ir.mywind.com.cn.
Safe Harbor Statement
This press release contains
forward-looking statements. These statements constitute forward-looking statements within the meaning of Section 21E of the Securities Exchange Act of 1934, as amended, and as defined in the U.S. Private Securities Litigation Reform
Act of 1995. These forward-looking statements can be identified by terminology such as if, will, expected and similar statements. Forward-looking statements involve inherent risks, uncertainties and assumptions.
Risks, uncertainties and assumptions include: uncertainties as to how the Companys shareholders will vote at the meeting of shareholders; the possibility that competing offers will be made; the possibility that financing may not be available;
the possibility that various closing conditions for the transaction may not be satisfied or waived; and other risks and uncertainties discussed in documents filed with the SEC by the Company, as well as the Schedule 13E-3 transaction statement and
the proxy statement to be filed by the Company. These forward-looking statements reflect expectations as of the date of this press release. You should not rely upon these forward-looking statements as predictions of future events. Ming Yang does not
undertake any obligation to update any forward-looking statement, except as required under applicable law.
For investor and media inquiries, please
contact:
China Ming Yang Wind Power Group Limited
Ricky Ng
+86-760-2813-8698
ir@mywind.com.cn
http://ir.mywind.com.cn
Exhibit 99.2
EXECUTION VERSION
AGREEMENT AND PLAN OF MERGER
Among
ZHONGSHAN RUISHENG ANTAI
INVESTMENT CO., LTD
REGAL CONCORD LIMITED,
REGAL ALLY LIMITED
and
CHINA MING YANG WIND POWER GROUP LIMITED
Dated as of February 2, 2016
TABLE OF CONTENTS
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Page |
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ARTICLE I
THE MERGER |
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SECTION 1.01 |
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The Merger |
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2 |
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SECTION 1.02 |
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Closing; Closing Date |
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2 |
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SECTION 1.03 |
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Effective Time |
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2 |
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SECTION 1.04 |
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Memorandum and Articles of Association of Surviving Company |
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3 |
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SECTION 1.05 |
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Directors and Officers |
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3 |
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ARTICLE II |
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EFFECT ON ISSUED SECURITIES; EXCHANGE OF CERTIFICATES |
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SECTION 2.01 |
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Effect of Merger on Issued Securities |
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3 |
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SECTION 2.02 |
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Share Incentive Plan and Outstanding Company Share Awards |
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4 |
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SECTION 2.03 |
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Dissenting Shares |
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5 |
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SECTION 2.04 |
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Exchange of Share Certificates, etc. |
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5 |
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SECTION 2.05 |
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No Transfers |
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9 |
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SECTION 2.06 |
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Termination of Deposit Agreement |
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9 |
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SECTION 2.07 |
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Agreement of Fair Value |
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ARTICLE III |
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REPRESENTATIONS AND WARRANTIES OF THE COMPANY |
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SECTION 3.01 |
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Organization and Qualification |
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SECTION 3.02 |
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Memorandum and Articles of Association |
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10 |
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SECTION 3.03 |
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Capitalization |
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10 |
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SECTION 3.04 |
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Authority Relative to this Agreement; Fairness |
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11 |
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SECTION 3.05 |
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No Conflict; Required Filings and Consents |
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12 |
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SECTION 3.06 |
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Permits; Compliance with Laws |
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13 |
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SECTION 3.07 |
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SEC Filings; Financial Statements |
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15 |
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SECTION 3.08 |
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Absence of Certain Changes or Events |
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16 |
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SECTION 3.09 |
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Absence of Litigation |
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16 |
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SECTION 3.10 |
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Labor and Employment Matters; Employee Plans |
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17 |
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SECTION 3.11 |
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Real Property |
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SECTION 3.12 |
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Intellectual Property |
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SECTION 3.13 |
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Taxes |
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SECTION 3.14 |
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Indebtedness and Security |
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SECTION 3.15 |
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Material Contracts |
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SECTION 3.16 |
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Environmental Matters |
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SECTION 3.17 |
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Interested Party Transactions |
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SECTION 3.18 |
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Insurance |
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SECTION 3.19 |
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Personal Property and Inventory |
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SECTION 3.20 |
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Accounts Receivable |
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SECTION 3.21 |
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Anti-Takeover Provisions |
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SECTION 3.22 |
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Brokers |
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SECTION 3.23 |
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No Other Representations and Warranties |
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ARTICLE IV |
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REPRESENTATIONS AND WARRANTIES OF HOLDCO, PARENT AND MERGER SUB |
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SECTION 4.01 |
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Corporate Organization |
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SECTION 4.02 |
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Memorandum and Articles of Association |
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SECTION 4.03 |
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Capitalization |
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SECTION 4.04 |
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Authority Relative to This Agreement |
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SECTION 4.05 |
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No Conflict; Required Filings and Consents |
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SECTION 4.06 |
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Absence of Litigation |
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SECTION 4.07 |
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Financing; Equity Rollover |
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SECTION 4.08 |
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Limited Guarantees |
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SECTION 4.09 |
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Brokers |
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30 |
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SECTION 4.10 |
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Ownership of Company Shares |
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30 |
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SECTION 4.11 |
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Independent Investigation |
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SECTION 4.12 |
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Buyer Group Contracts |
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SECTION 4.13 |
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No Other Representations and Warranties |
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ARTICLE V |
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CONDUCT OF BUSINESS PENDING THE MERGER |
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SECTION 5.01 |
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Conduct of Business by the Company Pending the Merger |
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ARTICLE VI |
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ADDITIONAL AGREEMENTS |
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SECTION 6.01 |
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Proxy Statement and Schedule 13E-3 |
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SECTION 6.02 |
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Company Shareholders Meeting |
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SECTION 6.03 |
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Access to Information |
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SECTION 6.04 |
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No Solicitation of Transactions |
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SECTION 6.05 |
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Directors and Officers Indemnification and Insurance |
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SECTION 6.06 |
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Notification of Certain Matters |
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SECTION 6.07 |
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Further Action; Reasonable Best Efforts |
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SECTION 6.08 |
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Participation in Litigation |
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SECTION 6.09 |
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Resignations |
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46 |
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SECTION 6.10 |
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Public Announcements |
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SECTION 6.11 |
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Stock Exchange Delisting |
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SECTION 6.12 |
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Takeover Statutes |
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SECTION 6.13 |
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SAFE Registration |
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SECTION 6.14 |
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Financing |
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ARTICLE VII |
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CONDITIONS TO THE MERGER |
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SECTION 7.01 |
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Conditions to the Obligations of Each Party |
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SECTION 7.02 |
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Conditions to the Obligations of Holdco, Parent and Merger Sub |
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SECTION 7.03 |
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Conditions to the Obligations of the Company |
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SECTION 7.04 |
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Frustration of Closing Conditions |
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ARTICLE VIII |
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TERMINATION, AMENDMENT AND WAIVER |
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SECTION 8.01 |
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Termination |
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SECTION 8.02 |
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Effect of Termination |
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SECTION 8.03 |
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Fees and Expenses |
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SECTION 8.04 |
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Limitations on Liabilities |
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56 |
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SECTION 8.05 |
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Amendment |
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SECTION 8.06 |
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Waiver |
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ARTICLE IX |
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GENERAL PROVISIONS |
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SECTION 9.01 |
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Non-Survival of Representations, Warranties and Agreements |
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SECTION 9.02 |
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Notices |
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SECTION 9.03 |
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Certain Definitions and Interpretations |
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59 |
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SECTION 9.04 |
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Severability |
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SECTION 9.05 |
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Entire Agreement; Assignment |
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69 |
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SECTION 9.06 |
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Parties in Interest |
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69 |
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SECTION 9.07 |
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Specific Performance |
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SECTION 9.08 |
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Governing Law; Jurisdiction |
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SECTION 9.09 |
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Waiver of Jury Trial |
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SECTION 9.10 |
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Headings |
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SECTION 9.11 |
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Counterparts |
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71 |
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ANNEX A |
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Form of Plan of Merger |
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AGREEMENT AND PLAN OF MERGER, dated as of February 2, 2016 (this Agreement),
among Zhongshan Ruisheng Antai Investment Co., Ltd
, a limited liability company incorporated under the laws of the Peoples Republic of China (Holdco), Regal Concord Limited, a business company with limited liability incorporated under the laws
of the British Virgin Islands (Parent, together with Holdco, the Parent Parties), Regal Ally Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands and a
wholly-owned subsidiary of Parent (Merger Sub), and China Ming Yang Wind Power Group Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands (the Company).
WHEREAS, upon the terms and subject to the conditions of this Agreement and in accordance with the Companies Law (2013 Revision, as amended
from time to time) of the Cayman Islands (the CICL), Holdco, Parent and the Company will enter into a business combination transaction pursuant to which Merger Sub will merge with and into the Company (the
Merger), with the Company being the surviving company in the Merger and becoming a wholly-owned subsidiary of Parent as a result of the Merger;
WHEREAS, the board of directors of the Company (the Company Board), acting upon the unanimous recommendation of the special
committee of independent directors of the Company Board (the Special Committee), has (i) determined that it is in the best interests of the Company and its shareholders (other than holders of the Rollover Securities), and
declared it advisable, to enter into this Agreement and the Plan of Merger, (ii) approved the execution, delivery and performance of this Agreement and the Plan of Merger and the consummation of the transactions contemplated hereby and thereby,
including the Merger (collectively, the Transactions), and (iii) resolved to recommend the approval of this Agreement, the Plan of Merger and the Transactions by the shareholders of the Company at the Shareholders
Meeting;
WHEREAS, the board of directors of each of Holdco, Parent and Merger Sub has (i) approved the execution, delivery and
performance by Parent and Merger Sub, respectively, of this Agreement, the Plan of Merger and the consummation of the Transactions, and (ii) declared it advisable for Parent and Merger Sub, respectively, to enter into this Agreement and the
Plan of Merger;
WHEREAS, Parent, acting in the capacity as the sole shareholder of Merger Sub, has approved the execution, delivery and
performance by Merger Sub of this Agreement, the Plan of Merger and the consummation of the Transactions;
WHEREAS, the Chairman Parties
and Sponsors entered into a Consortium Agreement, dated as of February 2, 2016, providing that, among other things, the Chairman Parties will, subject to the terms and conditions thereof, vote their Ordinary Shares and ADSs in favor of the
authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, at the Shareholders Meeting;
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WHEREAS, as an inducement to the Company, Holdco, Parent and Merger Sub to enter into this
Agreement and to consummate the Transactions, simultaneously with the execution and delivery of this Agreement, the Rollover Securityholders have each executed and delivered to Holdco and Parent (i) a Rollover Agreement, pursuant to which,
subject to the terms and conditions set forth therein, the Rollover Securityholders agree to receive no cash consideration for the number of Ordinary Shares held by each of them as set forth in the respective Rollover Agreement in the Merger (the
Rollover Securities) and that all Rollover Securities will be converted into ordinary shares of the Surviving Company at the Effective Time, and (ii) a support agreement, dated as of the date hereof (the Support
Agreement), providing that, among other things, the Rollover Securityholders will vote their Ordinary Shares in favor of the approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, at the
Shareholders Meeting; and
WHEREAS, as an inducement to the Companys willingness to enter into this Agreement, concurrently
with the execution and delivery of this Agreement, the Chairman and each Sponsor (or an Affiliate thereof) (each, a Guarantor, and collectively, the Guarantors) have executed and delivered to the Company limited
guarantees, dated the date hereof, in favor of the Company pursuant to which each such Guarantor is guaranteeing certain obligations of Holdco, Parent and Merger Sub under this Agreement (each, a Limited Guarantee, and
collectively, the Limited Guarantees).
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements herein contained, and intending to be legally bound hereby, Holdco, Parent, Merger Sub and the Company hereby agree as follows:
ARTICLE I
THE MERGER
SECTION 1.01 The Merger. Upon the terms of this Agreement and subject to the conditions set forth in Article VII,
and in accordance with the CICL, at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease and the Company shall continue as the surviving
company of the Merger (the Surviving Company) under the Laws of the Cayman Islands as a wholly-owned subsidiary of Parent.
SECTION 1.02 Closing; Closing Date. The closing of the Merger (the Closing) shall take place at 10:00 a.m.
(Hong Kong time) no later than the fifteenth (15th) Business Day immediately following the satisfaction or waiver of the conditions set forth in Article VII (other than those conditions that by their nature are to be satisfied at the Closing,
but subject to the satisfaction or waiver of those conditions), or another date or time agreed in writing by the Company and Parent (the Closing Date) at the offices of Simpson Thacher & Bartlett, 35/F ICBC Tower, 3
Garden Road, Central, Hong Kong, or at another place agreed in writing by the Company and Parent.
SECTION 1.03 Effective
Time. Subject to the provisions of this Agreement, on the Closing Date, Merger Sub and the Company shall execute a plan of merger (the Plan of Merger) substantially in the form set out in Annex A and the parties shall file the
Plan of Merger and other documents required under the CICL to effect the Merger with the Registrar of Companies of the Cayman Islands as provided by Section 233 of the CICL. The Merger shall become effective on the date specified in the Plan of
Merger (the Effective Time).
2
SECTION 1.04 Memorandum and Articles of Association of Surviving Company. At the
Effective Time, the memorandum and articles of association of the Surviving Company shall be amended to read in their entirety the same as the memorandum and articles of association of Merger Sub, as in effect immediately prior to the Effective Time
(which shall include the provisions required by Section 6.5(a) hereof), until thereafter amended as provided by Law and such memorandum and articles of association (but subject to Section 6.5(a) hereof); provided, however,
that, at the Effective Time, (a) all references in the memorandum and articles of association to the name of the Surviving Company shall be amended to refer to CHINA MING YANG WIND POWER GROUP LIMITED and (b) references therein
to the authorized share capital of the Surviving Company shall be amended to refer to the authorized share capital of the Surviving Company as approved in the Plan of Merger.
SECTION 1.05 Directors and Officers. The parties hereto shall take all actions necessary so that (a) the directors of Merger
Sub immediately prior to the Effective Time shall be the initial directors of the Surviving Company as set out in the Plan of Merger, and (b) the officers (other than the directors) of the Company immediately prior to the Effective Time shall
be the initial officers of the Surviving Company, in each case, unless otherwise determined by Parent prior to the Effective Time, and until their respective successors are duly elected or appointed and qualified or until the earlier of their death,
resignation or removal in accordance with the memorandum and articles of association of the Surviving Company.
ARTICLE II
EFFECT ON ISSUED SECURITIES; EXCHANGE OF CERTIFICATES
SECTION 2.01 Effect of Merger on Issued Securities. At the Effective Time, by virtue of the Merger and without any action on the
part of Holdco, Parent, Merger Sub, the Company or the holders of any securities of the Company:
(a) (i) Each ordinary
share, par value US$0.001 per share, of the Company (an Ordinary Share or, collectively, the Ordinary Shares), including Ordinary Shares represented by American Depositary Shares, each representing one
(1) Ordinary Share (the ADSs), issued and outstanding immediately prior to the Effective Time, other than (A) any Rollover Securities, (B) any Dissenting Shares, (C) any Ordinary Shares owned by any Group
Company (if any), and (D) any Ordinary Shares (including Ordinary Shares held by the Depositary in respect of ADSs) reserved (but not yet allocated) by the Company, immediately prior to the Effective Time, for issuance and allocation upon
exercise of any Company Share Awards (collectively, the Excluded Shares), shall be cancelled and shall thereafter represent the right to receive US$2.51 in cash per Ordinary Share without interest (the Per Share Merger
Consideration) pursuant to the terms and conditions set forth in this Agreement, and as each ADS represents one (1) Ordinary Share, each ADS issued and outstanding immediately prior to the Effective Time (other than ADSs that
represent Excluded Shares) shall represent the right to surrender the ADS in exchange for US$2.51 in cash per ADS without interest (the Per ADS Merger Consideration), pursuant to the terms and conditions set forth in this
Agreement and the Deposit Agreement; and (ii) all of the Ordinary Shares, including Ordinary Shares represented by ADSs (other than the Excluded Shares), shall be cancelled and cease to exist, and the register of members of the Company will be
amended accordingly.
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(b) Each Excluded Share (other than the Dissenting Shares), including Excluded
Shares represented by ADSs (other than ADSs that represent the Dissenting Shares), issued and outstanding immediately prior to the Effective Time, by virtue of the Merger and without any action on the part of its holder, shall be cancelled and cease
to exist, without payment of any consideration or distribution therefor, and the register of members of the Company shall be amended accordingly.
(c) Each ordinary share, par value US$1.00 per share, of Merger Sub issued and outstanding immediately prior to the Effective
Time shall be converted into one (1) validly issued, fully paid and non-assessable ordinary share, par value US$1.00 per share, of the Surviving Company. Such ordinary shares, together with the share capital described in subsection
(d) below, shall be the only issued and outstanding share capital of the Surviving Company, and the Surviving Company shall make entries in its register of members to reflect the holder of ordinary shares of Merger Sub immediately prior to the
Effective Time as the holder of the ordinary shares of the Surviving Company immediately after the Effective Time.
(d)
Each Rollover Security issued and outstanding immediately prior to the Effective Time shall be converted into and become one validly issued, fully paid and non-assessable ordinary share, par value US$1.00 per share, of the Surviving Company.
SECTION 2.02 Share Incentive Plan and Outstanding Company Share Awards. (a) As soon as practicable following the date hereof,
the Company shall approve resolutions to effectuate the provisions of this Section 2.02 with respect to the Company Share Awards. Except as otherwise expressly agreed among the Company, Parent and any holder thereof, subject to the terms of the
Share Incentive Plan: (i) each Company Option that is unvested and outstanding immediately prior to the Effective Time (an Unvested Company Option) shall, by virtue of the Merger and without any action on the part of the holder thereof,
cease to represent a right to purchase shares Ordinary Shares and shall be converted into an option (a Parent Option) to purchase, on substantially the same terms and conditions applicable to each such Unvested Company Option,
immediately prior to the Effective Time (including the same vesting conditions and transfer restrictions), the number of whole ordinary shares of Parent or an Affiliate of Parent, rounded down to the nearest whole share, that is equal to the product
of (A) the number of Ordinary Shares subject to such Unvested Company Option immediately prior to the Effective Time, multiplied by (B) a fraction, the numerator of which shall be the Per Share Merger Consideration and the denominator of which shall
be the fair market value of an ordinary share of Parent or such Affiliate of Parent at the Effective Time as determined in good faith by the board of directors of Parent or such Affiliate of Parent (such fraction, the Option Exchange
Ratio), at an exercise price per ordinary share of Parent or such Affiliate of Parent (rounded up to the nearest whole cent) equal to (x) the exercise price for each such Ordinary Share subject to such Unvested Company Option immediately prior
to the Effective Time divided by (y) the Option Exchange Ratio; and (ii) each Company Restricted Share Award that is outstanding at the Effective Time shall, by virtue of the Merger and without any action on the part of the holder thereof, cease to
represent a restricted stock unit award with respect to Ordinary Shares and shall be converted into and thereafter evidence a restricted stock unit with respect to ordinary shares of Parent or an Affiliate of Parent (each, a Rollover
RSU) with respect to the number of whole ordinary shares of Parent or such Affiliate of Parent (rounded down to the nearest whole share) that is equal to the product of (i) the number of Ordinary Shares underlying the Company Restricted Share
Award immediately prior to the Effective Time and (ii) a fraction, the numerator of which shall be the Per Share Merger Consideration, and the denominator of which shall be the fair market value of an ordinary share of Parent or such Affiliate of
Parent as of the Effective Time. Each Rollover RSU shall be subject to the same terms and conditions as applied to the corresponding Company Restricted Share Award immediately prior to the Effective Time, including the terms and conditions set forth
in the Share Incentive Plan.
(b) Vested Company Options. Each Vested Company Option that is outstanding immediately
prior to the Effective Time shall be cancelled upon the Effective Time and each former holder of a Vested Company Option shall, in exchange therefor, be paid as soon as practicable after the Effective Time (without interest), a cash amount equal to
the product of (i) the excess, if any, of the Per Share Merger Consideration over the Exercise Price of such Vested Company Option and (ii) the number of Ordinary Shares underlying such Vested Company Option, net of any applicable
withholding taxes; provided that if the Exercise Price of any such Vested Company Option is equal to or greater than the Per Share Merger Consideration, such Vested Company Option shall be cancelled without any payment therefor.
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SECTION 2.03 Dissenting Shares. (a) Notwithstanding any provision of this
Agreement to the contrary and to the extent available under the CICL, Ordinary Shares that are issued and outstanding immediately prior to the Effective Time and that are held by shareholders who shall have validly exercised and not effectively
withdrawn or lost their rights to dissent from the Merger (dissenters rights) in accordance with Section 238 of the CICL (collectively, the Dissenting Shares; holders of Dissenting Shares being
referred to as Dissenting Shareholders) shall at the Effective Time be cancelled and cease to exist, and each such Dissenting Shareholder shall be entitled to receive only the payment of the fair value of such Dissenting Shares
held by them in accordance with the provisions of Section 238 of the CICL, except that all Ordinary Shares held by Dissenting Shareholders who shall have failed to exercise or who effectively shall have withdrawn or lost their dissenters
rights in respect of such Ordinary Shares under Section 238 of the CICL shall thereupon (i) not be deemed to be Dissenting Shares and (ii) be and be deemed to have been cancelled and cease to exist, as of the Effective Time, in
consideration for the right of the holder thereof to receive the Per Share Merger Consideration, without any interest thereon, in the manner provided in Section 2.04.
(b) The Company shall give the Parent Parties (i) prompt notice of any objection or dissent to the Merger or demands for
appraisal received by the Company, attempted withdrawals of such dissenters rights or demands, and any other instruments or proceedings served pursuant to the CICL and received by the Company relating to the Transactions or its
shareholders dissenters rights, and (ii) the opportunity to direct all negotiations and proceedings with respect to any exercise of dissenters rights or any demands for appraisal under the CICL or applicable Law. The Company
shall not, except with the prior written consent of the Parent Parties, make any payment with respect to any exercise of dissenters rights or any demands for appraisal or offer to settle or settle any such dissenters rights or any
demands or approve any withdrawal of any such dissenters rights or demands.
(c) In the event that any written
notices of objection to the Merger are served by any shareholders of the Company pursuant to Section 238(2) of the CICL, the Company shall serve written notice of the authorization of the Merger on such shareholders pursuant to
Section 238(4) of the CICL within two (2) days of the approval of the Merger by shareholders of the Company at the Shareholders Meeting.
SECTION 2.04 Exchange of Share Certificates, etc. (a) Paying Agent. Prior to the Effective Time, Holdco or Parent shall
appoint a bank or trust company that is reasonably satisfactory to the Company (such consent not to be unreasonably withheld, conditioned or delayed) to act as paying agent (the Paying Agent) for all payments required to be made
pursuant to Section 2.01(a) and the exception set forth in Section 2.03(a) (collectively, the Merger Consideration). Prior to the Effective Time, Holdco or Parent shall deposit, or cause to be deposited, with the Paying
Agent, for the benefit of the holders of Ordinary Shares and ADSs (other than Excluded Shares), cash in an amount sufficient to pay the Merger Consideration (such cash being hereinafter referred to as the Exchange Fund).
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(b) Exchange Procedures. As promptly as practicable after the Effective
Time, the Surviving Company shall cause the Paying Agent to mail (or in the case of the Depositary, deliver) or otherwise disseminate to each person who was, at the Effective Time, a registered holder of Ordinary Shares entitled to receive the Per
Share Merger Consideration pursuant to Section 2.01(a): (i) a letter of transmittal (which shall be in customary form for a company incorporated in the Cayman Islands reasonably acceptable to Parent and the Company, and shall specify the
manner in which the delivery of the Exchange Fund to registered holders of Ordinary Shares (other than Excluded Shares) shall be effected and contain such other provisions as the Parent Parties and the Company may mutually agree); and
(ii) instructions for use in effecting the surrender of any issued share certificates representing Ordinary Shares (the Share Certificates) (or affidavits and indemnities of loss in lieu of the Share Certificates as provided
in Section 2.04(c)) and/or such other documents as may be required in exchange for the Per Share Merger Consideration. Upon surrender of, if applicable, a Share Certificate (or affidavit and indemnity of loss in lieu of the Share Certificate as
provided in Section 2.04(c)) and/or such other documents as may be required pursuant to such instructions to the Paying Agent in accordance with the terms of such letter of transmittal, duly executed in accordance with the instructions thereto,
each registered holder of Ordinary Shares represented by such Share Certificate and each registered holder of Ordinary Shares which are not represented by a Share Certificate (the Uncertificated Shares) shall be entitled to
receive in exchange therefor a check, in the amount equal to (x) the number of Ordinary Shares represented by such Share Certificate (or affidavit and indemnity of loss in lieu of the Share Certificate as provided in Section 2.04(c)) or
the number of Uncertificated Shares multiplied by (y) the Per Share Merger Consideration, and the Share Certificate so surrendered shall forthwith be marked as cancelled. Prior to the Effective Time, Parent and the Company shall establish
procedures with the Paying Agent and the Depositary to ensure that (A) the Paying Agent will transmit to the Depositary as promptly as reasonably practicable following the Effective Time an amount in cash in immediately available funds equal to
the product of (x) the number of ADSs issued and outstanding immediately prior to the Effective Time (other than ADSs representing the Excluded Shares) and (y) the Per ADS Merger Consideration, and (B) the Depositary will distribute
the Per ADS Merger Consideration to holders of ADSs pro rata to their holdings of ADSs (other than ADSs representing the Excluded Shares) upon surrender by them of the ADSs. The holders of ADSs shall bear any applicable fees, charges and expenses of
the Depositary and government charges due to or incurred by the Depositary in connection with distribution of the Per ADS Merger Consideration to holders of ADSs, including applicable ADS cancellation fees, and any such fees, charges and expenses
incurred by the Depositary. In the event that the Parent Parties determines that any deduction or withholding is required to be made from any Merger Consideration payable pursuant to this Agreement, they shall promptly inform the Company in writing
of such determination and consult with the Company in good faith regarding such determination. To the extent that any such amounts are so deducted, withheld and remitted to the applicable Governmental Entity, such amounts shall be treated for all
purposes under this Agreement as having been paid to the holders of ADSs. No interest shall be paid or will accrue on any amount payable in respect of the Ordinary Shares or ADSs pursuant to the provisions of this Article II. In the event of a
transfer of ownership of Ordinary Shares that is not registered in the register of members of the Company, the Per Share Merger Consideration in respect of such Ordinary Shares may be paid to such transferee upon delivery of evidence to the
satisfaction of the Parent Parties (or any agent designated by the Parent Parties) of such transferees entitlement to the relevant Ordinary Shares and to receive the Per Share Merger Consideration, to the exclusion of the applicable transferor
and evidence that any applicable share transfer taxes have been paid or are not applicable.
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(c) Lost Certificates. If any Share Certificate shall have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Share Certificate to be lost, stolen or destroyed and, if required by the Surviving Company, the posting by such person of a bond, in such reasonable
amount as the Surviving Company may direct, as indemnity against any claim that may be made against it with respect to such Share Certificate, the Paying Agent will pay (and Parent will cause it to pay) in respect of the Ordinary Shares represented
by such lost, stolen or destroyed Share Certificate an amount equal to the Per Share Merger Consideration multiplied by the number of Ordinary Shares represented by such Share Certificate to which the holder thereof is entitled pursuant to
Section 2.01(a).
(d) Untraceable Shareholders. Remittances for the Per Share Merger Consideration shall not be
sent to holders of Ordinary Shares who are untraceable unless and until, except as provided below, they notify the Paying Agent of their current contact details prior to the Effective Time. A holder of Ordinary Shares will be deemed to be
untraceable if (i) such person has no registered address in the register of members (or branch register) maintained by the Company or, (ii) on the last two consecutive occasions on which a dividend has been paid by the Company a check
payable to such person either (x) has been sent to such person and has been returned undelivered or has not been cashed or, (y) has not been sent to such person because on an earlier occasion a check for a dividend so payable has been
returned undelivered, and in any such case no valid claim in respect thereof has been communicated in writing to the Company or, (iii) notice of the Shareholders Meeting convened to vote on the Merger has been sent to such person and has
been returned undelivered. Dissenting Shareholders and holders of Ordinary Shares who are untraceable who subsequently wish to receive any monies otherwise payable in respect of the Merger within applicable time limits or limitation periods will be
advised to contact the Surviving Company.
(e) Adjustments to Merger Consideration. The Per Share Merger
Consideration and the Per ADS Merger Consideration shall be adjusted to reflect appropriately the effect of any share split, reverse share split, share dividend (including any dividend or distribution of securities convertible into Ordinary Shares),
extraordinary cash dividends, reorganization, recapitalization, reclassification, combination, exchange of shares, change or readjustment in the ratio of Ordinary Shares represented by each ADS or other like change with respect to Ordinary Shares
occurring, or with a record date, on or after the date hereof and prior to the Effective Time.
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(f) Investment of Exchange Fund. The Exchange Fund, pending its
disbursement to the holders of Ordinary Shares and ADSs, shall be invested by the Paying Agent as directed by Parent or, after the Effective Time, the Surviving Company in (a) short-term direct obligations of the United States of America,
(b) short-term obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest, or (c) short-term commercial paper rated the highest quality by either
Moodys Investors Service, Inc. or Standard & Poors Corporation or certificates of deposit, bank repurchase agreements or bankers acceptances of commercial banks acceptable to the Parent Parties; provided, that no
such investment or losses in respect thereto shall affect the amounts payable to each holder of Ordinary Shares and ADSs and the Parent Parties shall promptly replace or cause to be replaced any funds deposited with the Paying Agent that are lost
through any investment. Earnings from investments shall be the sole and exclusive property of Parent and the Surviving Company. Except as provided herein or in Sections 2.01 or 2.03(a), the Exchange Fund shall not be used for any other purposes.
(g) Termination of Exchange Fund. Any portion of the Exchange Fund (including any income or proceeds thereof or of
any investment thereof) that remains undistributed to the holders of Ordinary Shares or ADSs for six (6) months after the Effective Time shall automatically and promptly be delivered to the Surviving Company, and any holders of Ordinary Shares
or ADSs (other than Excluded Shares) that were issued and outstanding immediately prior to the Effective Time who have not theretofore complied with this Article II, shall thereafter look only to the Surviving Company for the cash to which they
are entitled pursuant to Sections 2.01(a). Any portion of the Exchange Fund remaining unclaimed by holders of Ordinary Shares or ADSs as of a date which is immediately prior to such time as such amounts would otherwise escheat to or become property
of any Governmental Authority shall, to the extent permitted by applicable Law, become the property of the Surviving Company free and clear of any claims or interest of any person previously entitled thereto.
(h) No Liability. None of the Paying Agent, Holdco, Parent or the Surviving Company shall be liable to any holder of
Ordinary Shares in respect of any such Ordinary Shares (including Ordinary Shares represented by ADSs) or Company Share Awards (or dividends or distributions with respect thereto) for which payment was delivered to a public official pursuant to any
abandoned property, escheat or similar Law.
(i) Withholding Rights. Each of Holdco, Parent, the Surviving Company,
the Paying Agent and the Depositary (and any other Person that has a payment obligation pursuant to this Agreement), as applicable, shall be entitled to deduct and withhold from any amounts payable pursuant to this Agreement such amounts as it
reasonably determines it is required to deduct and withhold with respect to the making of such payment under any provisions of applicable Law. To the extent that any such amounts are deducted, withheld and remitted to the applicable Governmental
Authority, such amounts shall be treated for all purposes of this Agreement as having been paid to the recipients in respect of which such deduction and withholding was made. The Parent Parties and Merger Sub have determined that no deduction or
withholding is required under any provision of applicable Tax Laws as in effect and as generally interpreted as of the date of this Agreement with respect to the payment of the Per ADS Merger Consideration or the Per Share Merger Consideration
pursuant to this Article II.
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SECTION 2.05 No Transfers. From and after the Effective Time, (a) no transfers
of Ordinary Shares shall be effected in the register of members of the Company, and (b) the holders of Ordinary Shares (including Ordinary Shares represented by ADSs) outstanding immediately prior to the Effective Time shall cease to have any
rights with respect to such Ordinary Shares, except as otherwise provided in this Agreement or by Law. On or after the Effective Time, any Share Certificates presented to the Paying Agent, Parent or Surviving Company for transfer or any other reason
shall be canceled and (except for the Excluded Shares) exchanged for the cash consideration to which the holders thereof are entitled pursuant to Section 2.01(a).
SECTION 2.06 Termination of Deposit Agreement. As soon as reasonably practicable after the Effective Time, the Surviving Company
shall provide notice to Citibank, N.A. (the Depositary) to terminate the deposit agreement, dated as of October 6, 2010 between the Company, the Depositary and the Holders and Beneficial Owners of American Depositary Shares
issued thereunder (the Deposit Agreement) in accordance with its terms.
SECTION 2.07 Agreement of Fair
Value. Holdco, Parent, Merger Sub and the Company respectively agree that the Per Share Merger Consideration represents the fair value of the Ordinary Shares for the purposes of Section 238(8) of the CICL.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in (a) the Company SEC Reports filed prior to the date hereof (without giving effect to any amendment to any such
Company SEC Report filed on or after the date hereof and excluding disclosures in the Company SEC Reports contained in the Risk Factors or Forward Looking Statements sections or any other forward-looking statements or other
disclosures to the extent they are general, non-specific, forward-looking or cautionary in nature, in each case, other than specific factual information contained therein) or (b) for any matters with respect to which any Chairman Party has
actual knowledge, the Company hereby represents and warrants to the Parent Parties and Merger Sub that:
SECTION 3.01 Organization
and Qualification. (a) The Company is an exempted company duly organized, validly existing and in good standing under the Laws of the Cayman Islands and has the requisite corporate or similar power and authority to own, lease, operate and
use its properties and assets and to carry on its business as it is now being conducted. Each Subsidiary of the Company is a legal entity duly organized, validly existing and, where such concept is recognized, in good standing under the laws of the
jurisdiction of its organization and has the requisite corporate or similar power and authority to own, lease, operate and use its properties and assets and to carry on its business as it is now being conducted, except to the extent the failure of
any such Subsidiary to be so organized, existing or in good standing has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each of the Company and each Subsidiary of the
Company is duly qualified or licensed to do business, and is in good standing, where such concept is recognized, in each jurisdiction where the character of the properties and assets owned, leased, operated or used by it or the nature of its
business makes such qualification or licensing necessary, except to the extent such failures to be so qualified or licensed or in good standing has not had and would not reasonably be expected to have, individually or in the aggregate, a Company
Material Adverse Effect.
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(b) Except for the Companys Subsidiaries disclosed in the Company SEC
Reports, as of the date hereof, there are no other entities in which any Group Company controls or owns, of record or beneficially, any direct or indirect equity or other interest or right (contingent or otherwise) to acquire the same, and neither
the Company nor any of its Subsidiaries is a participant in (nor is any part of their businesses conducted through) any joint venture, partnership or similar arrangement that is material to the business of the Company and its Subsidiaries, taken as
a whole.
SECTION 3.02 Memorandum and Articles of Association. The Company has heretofore furnished to Parent a complete and
correct copy of the memorandum and articles of association or equivalent organizational documents, each as amended or modified as of the date hereof, of each Group Company. Such memorandum and articles of association or equivalent organizational
documents are in full force and effect as of the date hereof. No Group Company is in violation of any of the provisions of its memorandum and articles of association or equivalent organizational documents in any material respect.
SECTION 3.03 Capitalization. (a) (i) The authorized share capital of the Company consists of 1,000,000,000 Ordinary
Shares of a par value of US$0.001 per share. As of the date of this Agreement, 160,534,813 Ordinary Shares are issued and outstanding, all of which have been duly authorized and are validly issued, fully paid and non-assessable, which number
includes 5,308,437 Ordinary Shares underlying Company Options outstanding as of the date of this Agreement. As of the date of this Agreement, (w) no Ordinary Shares are held by the Depositary in the name of the Company which have been reserved
for future grant of Company Share Awards under the Share Incentive Plan, (x) no Ordinary Shares are held in the treasury of the Company, (y) no Ordinary Shares are held by any Group Company and (z) no Ordinary Shares are held in brokerage
accounts in a Group Companys name.
(ii) The outstanding share capital or registered capital, as the case may be, of
each Subsidiary of the Company is duly authorized, validly issued, fully paid and non-assessable, and all of the outstanding share capital or registered capital, as the case may be, of each such Subsidiary is owned by a Group Company free and clear
of all Liens (other than Permitted Encumbrances). Subject to limitations imposed by applicable Law, each Group Company has the unrestricted right to vote, and to receive dividends and distributions on, all equity securities of its Subsidiaries.
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(iii) Except as set forth in this Section 3.03(a), there is no share capital
or other equity interest in the Company or any options, warrants, convertible debt, other convertible instruments, share appreciation rights, performance units, restricted share units, contingent value rights, phantom share units or
similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any share capital of or other equity interest in, the Company or any of its Subsidiaries, or any preemptive,
conversion, redemption or other rights, agreements, arrangements or commitments of any character to which the Company or any of its Subsidiaries is a party relating to the issued or unissued share capital of the Company or any of its Subsidiaries or
obligating the Company or any of its Subsidiaries to issue or sell any share capital, or other equity interests in, the Company or any of its Subsidiaries. All Ordinary Shares subject to issuance as aforesaid, upon issuance on the terms and
conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. There are no outstanding contractual obligations of the Company or any of its Subsidiaries to
repurchase, redeem or otherwise acquire any Ordinary Shares or other equity interests in, the Company or any of its Subsidiaries or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, the
Company or any of its Subsidiaries or any other Person. Each grant of Company Share Awards was properly approved by the Company Board (or a duly authorized committee or subcommittee thereof) and issued in compliance with all applicable Laws, and all
requirements set forth in the Share Incentive Plan. Except as required pursuant to the Share Incentive Plans or award agreements evidencing Company Share Awards, there are no commitments or agreements of any character to which any Group Company is
bound obligating any Group Company to accelerate or otherwise alter the vesting of any Company Share Award as a result of the Transactions.
(iv) The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the
right to vote (or convertible into or exercisable for securities having the right to vote) with the shareholders of the Company on any matter.
(b) The Company has made available to Parent accurate and complete copies of (x) the Share Incentive Plan pursuant to
which the Company has granted the Company Share Awards that are currently outstanding, and (y) the form of all award agreements evidencing such Company Share Awards.
SECTION 3.04 Authority Relative to this Agreement; Fairness. (a) The Company has the requisite corporate power and authority
to execute and deliver this Agreement, to perform its obligations hereunder and, subject to the receipt of the Requisite Company Vote, to consummate the Transactions. The execution, delivery and performance by the Company of this Agreement and the
consummation by the Company of the Transactions have been duly authorized by the Company Board, and no other corporate action on the part of the Company is necessary to authorize the execution and delivery by the Company of this Agreement and the
Plan of Merger and the consummation by it of the Transactions, in each case, subject only to the approval of this Agreement, the Plan of Merger and the Merger by the affirmative vote of holders of Ordinary Shares representing at least two-thirds of
the Ordinary Shares present and voting in person or by proxy as a single class at the Shareholders Meeting (the Requisite Company Vote) in accordance with Section 233(6) of the CICL and the memorandum and articles of
association of the Company. This Agreement has been duly and validly executed and delivered by the Company and, assuming the due authorization, execution and delivery by Holdco, Parent and Merger Sub, constitutes a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting
creditors rights and to general principles of equity (the Bankruptcy and Equity Exception).
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(b) The Company Board, acting upon the unanimous recommendation of the Special
Committee, has (i) determined that this Agreement and the Transactions, on the terms and subject to the conditions set forth herein, are fair to and in the best interests of the Company and its shareholders (other than holders of the Rollover
Securities), (ii) approved and declared advisable this Agreement, the Plan of Merger and the Transactions, and (iii) subject to Section 6.04(c), resolved to recommend approval of this Agreement, the Plan of Merger and the Transactions
to the holders of Ordinary Shares (the Company Recommendation). The Company Board, acting upon the unanimous recommendation of the Special Committee, has directed that this Agreement, the Plan of Merger and the Transactions be
submitted to the holders of Ordinary Shares for approval.
(c) The Special Committee has received the written opinion of
Duff & Phelps, LLC (the Financial Advisor), dated the date of this Agreement, to the effect that, subject to the limitations, qualifications and assumptions set forth therein and as of the date of such opinion, the Per
Share Merger Consideration to be paid to the holders of Ordinary Shares and the Per ADS Merger Consideration to be paid to the holders of ADSs (in each case, other than holders of Excluded Shares, including Excluded Shares represented by ADSs) in
the Merger is fair, from a financial point of view, to such holders, a copy of which opinion will be delivered to Parent for its information purposes only promptly after the date of this Agreement. The Financial Advisor has consented to the
inclusion of a copy of its opinion in the Proxy Statement. It is agreed and understood that such opinion may not be relied on by the Parent Parties or any of their respective affiliates.
SECTION 3.05 No Conflict; Required Filings and Consents. (a) The execution and delivery of this Agreement by the Company do
not, and the performance of this Agreement by the Company and the consummation of the Transactions will not, (i) conflict with or violate the memorandum and articles of association of the Company or any equivalent organizational documents of
any other Group Company, (ii) assuming (solely with respect to performance of this Agreement and consummation of the Transactions) that the matters referred to in Section 3.05(b) are complied with and the Requisite Company Vote is
obtained, conflict with or violate any Law applicable to any Group Company or by which any property or asset of any Group Company is bound or affected, or (iii) result in any breach of or constitute a default (or an event which, with notice or
lapse of time or both, would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien or other encumbrance (other than Permitted Encumbrances), on any
property or asset of any Group Company pursuant to, any Contract or obligation to which any Group Company is a party or by which any properties or assets of any Group Company are bound, except, with respect to clauses (ii) and (iii), for any
such conflict, violation, breach, default, right or other occurrences which would not, individually or in the aggregate, reasonably be expected to (x) prevent or materially delay the consummation of the Transactions or (y) have a Company
Material Adverse Effect.
(b) The execution and delivery of this Agreement by the Company do not, and the performance of
this Agreement by the Company and the consummation by the Company of the Transactions will not, require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Authority, except (i) for compliance
with the applicable requirements of the Securities Act (as defined below) and Securities Exchange Act of 1934, as amended (the Exchange Act), and the rules and regulations promulgated thereunder (including the joining of the
Company in the filing of a Schedule 13E-3, the furnishing of a Form 6-K with the Proxy Statement, and the filing or furnishing of one or more amendments to the Schedule 13E-3 and such Form 6-K to respond to comments of the Securities and Exchange
Commission (the SEC), if any, on such documents), (ii) for compliance with the rules and regulations of the New York Stock Exchange (NYSE), and (iii) for the filing of the Plan of Merger and related
documentation with the Registrar of Companies of the Cayman Islands pursuant to the CICL (collectively, the Company Requisite Regulatory Approvals), and (v) where the failure to obtain or make, as applicable, any such
consent, approval, authorization or permit of, or filing with or notification to, any Governmental Authority would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
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SECTION 3.06 Permits; Compliance with Laws. (a) Each Group Company is in
possession of all material franchises, grants, authorizations, licenses, permits, easements, variances, exceptions, consents, certificates, approvals and orders of any Governmental Authority necessary for such Group Company to own, lease, operate
and use its properties and assets or to carry on its business as it is now being conducted other than those the lack thereof would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect (the
Material Company Permits). No suspension or cancellation of any of the Material Company Permits is pending or, to the knowledge of the Company, threatened, except, in each case, where the suspension or cancellation of any Material
Company Permit would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(b) No Group Company is in default, breach or violation of any Material Company Permit, in each case except for any such
default, breach or violation that individually, or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect.
(c) Each Group Company is in compliance in all material respects with applicable Law (including, without limitation,
(i) any Laws applicable to its business and (ii) any Laws related to the protection of personal data). To the knowledge of the Company, no Group Company has received any written notice or communication from any applicable Governmental
Authority of any material non-compliance with any applicable Laws or Material Company Permits that has not been cured, except for any non-compliance that would not be reasonably be expected to have, individually or in the aggregate, a Company
Material Adverse Effect.
(d) All approvals of, and filings and registrations and other requisite formalities with,
Governmental Authorities in the Peoples Republic of China (PRC) that are material to the Group Companies taken as a whole and required to be made by the Company or its Subsidiaries in respect of the Company and its
Subsidiaries and their capital structure and operations, including but not limited to registrations with the State Administration for Industry and Commerce, the State Administration of Foreign Exchange (SAFE) and the State
Administration of Taxation and their respective local counterparts, have been duly completed in accordance with applicable PRC Laws in all material respects. Each Onshore Subsidiary has complied in all material respects with all applicable PRC Laws
regarding the contribution and payment of its registered capital.
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(e) Neither the Company, any of its Subsidiaries or any director, officer or
employee of the Company or any of its Subsidiaries, nor, the knowledge of the Company, any agent of the Company or any of its Subsidiaries acting on behalf of the Company or any of its Subsidiaries, have offered, paid, promised to pay or authorized
the payment of any money or anything else of value, whether directly or through another person, to:
(i) any Governmental
Official in order to improperly (A) influence any act or decision of any Governmental Official, (B) induce such Governmental Official to use his or its influence with a Governmental Authority or (C) otherwise secure any improper
advantage.
(ii) any other person in any manner that would constitute commercial bribery or an illegal kickback, or would
otherwise violate any Applicable Anti-Bribery Law.
(f) No Governmental Official or Governmental Entity presently owns an
interest, whether direct or indirect, in any Group Company or has any legal or beneficial interest in the Company or to payments made to the Company pursuant to this Agreement.
(g) The Company has maintained complete and accurate books and records and effective internal controls in accordance with the
Applicable Anti-Bribery Laws and generally accepted accounting principles.
(h) Neither the Company nor any of its
Subsidiaries nor, to the knowledge of the Company, any director, officer, employee, representative, agent or affiliate of the Company or any of its Subsidiaries, or any person or company acting on behalf of the Company (i) is currently subject
to or the target of any U.S. sanctions administered by the office of Foreign Assets Control of the U.S. Treasury Department or the U.S. Department of State, the United Nations Security Council, the European Union, Her Majestys Treasury or
other relevant sanctions authority; or pursuant to the Comprehensive Iran Sanctions and Divestment Act, the Iran Threat Reduction and Syria Human Rights Act of 2012, the National Defense Authorization Act for Fiscal Year 2012, the Iran Freedom and
Counter-Proliferation Act of 2012, each as amended, or any executive order, directive or regulation pursuant to the authority of any of the foregoing, or any orders or licenses issued pursuant to such authority (collectively,
Sanctions); or (ii) has violated or is operated not in compliance with, any applicable Sanctions or anti-money laundering Law, anti-terrorism Law, export restrictions, anti-boycott regulations or embargo regulation.
(i) No action, suit or proceeding by or before any Governmental Authority involving the Company or any of its Subsidiaries with
respect to anti-money laundering Law is pending or, to the knowledge of the Company, threatened.
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SECTION 3.07 SEC Filings; Financial Statements. (a) The Company has filed or
otherwise furnished (as applicable), all forms, reports and documents required to be filed with or furnished to the SEC by the Company since January 1, 2013 (the Applicable Date) (the forms, reports and other documents filed
or furnished since the Applicable Date and those filed or furnished subsequent to the date hereof as have been supplemented, modified or amended since the time of filing or furnishing, collectively, the Company SEC Reports). As of
the date of filing, in the case of Company SEC Reports filed pursuant to the Exchange Act (and to the extent such Company SEC Reports were amended, then as of the date of filing of such amendment), and as of the date of effectiveness in the case of
Company SEC Reports filed pursuant to the Securities Act of 1933, as amended (the Securities Act) (and to the extent such Company SEC Reports were amended, then as of the date of effectiveness of such amendment), the Company SEC
Reports (i) complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations promulgated thereunder, each as in effect on the date so filed or
effective, and (ii) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which
they were made, not misleading as of its filing date or effective date (as applicable).
(b) Each of the consolidated
financial statements (including, in each case, any notes thereto) contained in or incorporated by reference into the Company SEC Reports was prepared in accordance with International Financial Reporting Standards (IFRS) applied on
a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto) fairly presents, in all material respects, the consolidated financial position, results of operations, changes in shareholders equity and
cash flows of the Group Companies, as applicable, as at the respective dates thereof and for the respective periods indicated therein (subject, in the case of unaudited interim statements, to normal year-end audit adjustments which are not material
in the aggregate and the exclusion of certain notes in accordance with the rules of the SEC relating to unaudited financial statements), in each case, in accordance with IFRS.
(c) No Group Company has any liabilities of any nature (whether accrued, absolute, determined, determinable, fixed, contingent
or otherwise), in each case that would be required by IFRS to be reflected on a consolidated balance sheet of the Company and its consolidated Subsidiaries, except liabilities (i) reflected or reserved against in the consolidated balance sheet
for the quarter ended September 30, 2015 (including any notes thereto) included in the Company SEC Reports, (ii) incurred pursuant to this Agreement or in connection with the Transactions, (iii) incurred since September 30, 2015
in the ordinary course of business and in a manner consistent with past practice since the Companys initial public offering in 2010, or (iv) that would not, individually or in the aggregate, reasonably be expected to have a Company
Material Adverse Effect.
(d) The Company has timely filed all certifications and statements required by (x) Rule
13a-14 or Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Sarbanes-Oxley Act of 2002) with respect to any Company SEC Report. The Company has been and is in compliance, in all material respects, with
all provisions of the Sarbanes-Oxley Act of 2002 which are applicable to it. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act to ensure that all material information relating to
the Company and its Subsidiaries is made known on a timely basis to the individuals responsible for the preparation of the Companys SEC filings and other public disclosure documents. The Companys Chief Executive Officer and Chief
Financial Officer (the Certifying Officers) have evaluated the effectiveness of the Companys disclosure controls and procedures as of the end of the period covered by the Companys most recently filed annual report
under the Exchange Act (such date, the Evaluation Date). The Company presented in its most recently filed annual report under the Exchange Act the conclusions of the Certifying Officers about the effectiveness of the disclosure
controls and procedures based on their evaluations as of the Evaluation Date, including any change in the Companys internal control over financial reporting that occurred during the period ending on the Evaluation Date that has materially
affected, or is reasonably likely to materially affect, the Companys internal control over financial reporting. Since the Evaluation Date, to the knowledge of the Company, there has been no change in the Companys internal control over
financial reporting (as such term is defined in the Exchange Act) that has materially affected, or is reasonably likely to materially affect, the Companys internal control over financial reporting. To the knowledge of the Company, there is no
reason to believe that the matters certified by the Certifying Officers are not true and correct in all material respects.
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(e) Neither the Company nor, to the knowledge of the Company, the Companys
independent registered public accounting firm, has identified or been made aware of significant deficiencies or material weaknesses (as defined by the Public Company Accounting Oversight Board) in the design or operation of
the Companys internal controls and procedures which could reasonably adversely affect the Companys ability to record, process, summarize or report financial data, in each case which has not been subsequently remediated.
(f) The Group Companies maintain a system of internal accounting controls designed to provide reasonable assurance that
(i) transactions are executed in accordance with managements general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS and to maintain asset
accountability, (iii) access to assets is permitted only in accordance with managements general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
(g) The Company is in compliance in all material respects
with the applicable listing and corporate governance rules and regulations of the NYSE.
(h) There are no unconsolidated
Subsidiaries of the Company or any off-balance sheet arrangements of any type (including any off-balance sheet arrangement required to be disclosed pursuant to Item 303(a)(4) of Regulation S-K promulgated under the Securities Act) that have not
been so described in the Company SEC Reports nor any obligations to enter into any such arrangements.
SECTION 3.08 Absence of
Certain Changes or Events. Since September 30, 2015 to the date hereof, except as expressly contemplated by this Agreement, (a) the Company and its Subsidiaries have conducted their businesses in all material respects in the ordinary
course and in a manner consistent with past practice, or (b) there has not been any change in the financial condition, business or result of their operations or any circumstance, occurrence or development which has had a Company Material
Adverse Effect.
SECTION 3.09 Absence of Litigation. (a) There is no material litigation, suit, claim, action, demand
letter, or any judicial, criminal, administrative or regulatory proceeding, hearing, investigation, or formal or informal regulatory document production request proceeding (an Action) pending or, to the knowledge of the Company,
threatened against any Group Company, or any share, security, equity interest, property or asset of any Group Company, before any Governmental Authority.
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(b) Neither the Company nor any Subsidiary of the Company nor any property or
asset of the Company or any Subsidiary of the Company is subject to any continuing order of, consent decree, settlement agreement or other similar written agreement with, or, to the knowledge of the Company, any continuing investigation by, any
Governmental Authority, or any order, writ, judgment, injunction, decree, determination or award of any Governmental Authority, except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
SECTION 3.10 Labor and Employment Matters; Employee Plans. (a) No Group Company is a party to or bound by any collective
bargaining agreement or other labor union contract applicable to persons employed by any Group Company as of the date hereof, and no labor union has requested or, to the knowledge of the Company, has sought to represent any of the employees,
representatives or agents of any Group Company. There are no unfair labor practice complaints pending, or to the knowledge of the Company, threatened, against any Group Company before any Governmental Authority, except for any such pending or
threatened complaints that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. There is no strike, slowdown, work stoppage or lockout, or similar activity or, to the knowledge of the
Company, threat thereof, by or with respect to any employee of any Group Company.
(b) Each Group Company (i) is in
material compliance with all applicable Laws relating to employment and employment practices, including those related to wages, work hours, shifts, overtime, Social Security Benefits, holidays and leave, collective bargaining terms and conditions of
employment and the payment and withholding of taxes and other sums as required by the appropriate Governmental Authority, (ii) has withheld and paid in full to the appropriate Governmental Authority, or is holding for payment not yet due to
such Governmental Authority, all amounts required to be withheld from or paid with respect to each Group Companys employees (including the withholding and payment of all individual income taxes and contributions to Social Security Benefits
payable), and (iii) is not liable for any arrears of wages, taxes, penalties or other sums for failure to comply with any of the foregoing. There is no material claim with respect to payment of wages, salary or overtime pay that has been
asserted or is now pending or, to the knowledge of the Company, threatened before any Governmental Authority with respect to any persons currently or formerly employed by any Group Company. There is no charge or proceeding with respect to a material
violation of any occupational safety or health standards that has been asserted or is now pending or, to the knowledge of the Company, threatened with respect to any Group Company.
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(c) None of the Company Employee Plans is subject to the U.S. Employee Retirement
Income Security Act of 1974, as amended. Each Company Employee Plan is now and always has been operated in all material respects in accordance with its terms and the requirements of all applicable Laws. No Action or administrative proceeding is
pending or, to the knowledge of the Company, threatened with respect to any Company Employee Plan or against the assets thereof (other than claims for benefits in the ordinary course), and no fact or event exists that could give rise to any such
lawsuit, action, proceeding or claim. All employer and employee contributions to each Company Employee Plan required by applicable Law or by the terms of such Company Employee Plan have been made, or, if applicable, accrued in accordance with normal
accounting practices. The fair market value of the assets of each funded Company Employee Plan, the liability of each insurer for any Company Employee Plan funded through insurance or the book reserve established for any Company Employee Plan,
together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Closing, with respect to all current or former participants in such plan according to the actuarial assumptions and
valuations most recently used to determine employer contributions to such Company Employee Plan and no transaction contemplated by this Agreement shall cause such assets or insurance obligations to be less than such benefit obligations. Each Company
Employee Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities and any Group Company has obtained all necessary approvals in connection therewith. Each Company Employee
Plan may be amended, terminated or otherwise discontinued at any time without material liability to the Parent Parties or any Group Company, other than ordinary administration expenses.
(d) Except as otherwise specifically provided in this Agreement regarding the Company Share Awards, neither the execution and
delivery of this Agreement nor the consummation of the transactions contemplated hereby (either alone or in conjunction with another event, such as a termination of employment) will (i) result in any payment becoming due to any current or
former director or current or former employee of the Company or any of its Subsidiaries under any of the Company Employee Plans, (ii) increase any benefits otherwise payable under any of the Company Employee Plans or (iii) result in any
acceleration of the time of payment or vesting of any such benefits or result in the payment of any amount under any Company Employee Plan that would be, individually or in combination with any other such payment, an excess parachute
payment within the meaning of Section 280G of the Code. The Company is not obligated, pursuant to any of the Company Employee Plans, to grant any options or other rights to purchase or acquire Ordinary Shares to any employees, consultants
or directors of the Company after the date hereof.
SECTION 3.11 Real Property. (a) Except as would not, individually or
in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the applicable Group Company has good and marketable title, and validly granted long term land use rights and building ownership rights, to the real
property owned by any Group Company (the Owned Real Property), free and clear of any Lien, other than Permitted Property Liens, (ii) there are no outstanding options or rights of first refusal to purchase the Owned Real
Property, or any portion of the Owned Real Property or interest therein, (iii) the land use rights relating to the Owned Real Property have been duly obtained from a competent Governmental Authority in accordance with applicable Law and all
amounts (including, if applicable, land grant premiums) required under applicable Law in connection with securing such title or land use rights have been paid in full and on time, (iv) the applicable Group Company has duly complied with the
terms and conditions of, and all of its obligations under, the relevant land use rights grant contract, as applicable, and real property purchase contract in relation to any Owned Real Property and (v) none of the Group Companies has leased or
otherwise granted to any Person the right to use or occupy such Owned Real Property or any portion thereof.
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(b) All current leases and subleases of real property entered into by any Group
Company (the Leased Real Property) are in full force and effect, are valid and effective in accordance with their respective terms, subject to the Bankruptcy and Equity Exception, and there is not, under any of such leases, any
existing material default or event of default (or event which, with notice or lapse of time, or both, would constitute a default) by such Group Company or, to the knowledge of the Company, by the other party to such lease or sublease, except in each
case, as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The applicable Group Company has good and valid leasehold or sublease-hold interests in each parcel of Leased Real Property, free
and clear of any Liens other than Permitted Encumbrances, except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
SECTION 3.12 Intellectual Property. (a) The Group Companies exclusively own, free and clear of all Liens (other than
Permitted Encumbrances), or have the right to use, all Intellectual Property material to the conduct of the business of the Group Companies, which, as currently conducted, does not infringe upon or misappropriate the Intellectual Property rights or
other proprietary rights, including rights of privacy, publicity and endorsement, of any third party (Company Intellectual Property).
(b) To the knowledge of the Company, (a) each of the licenses, sublicenses, consents and other Contracts (i) by which
the Company or a Subsidiary of the Company is authorized to use any of the Intellectual Property that is used in or necessary for the conduct of the Group Companies businesses as presently conducted or as presently planned to be conducted and
(ii) by which the Company or a Subsidiary of the Company licenses or otherwise authorizes a third party to use any Intellectual Property owned by the Company or such Subsidiary of the Company (the IP Contracts) is valid and
is in full force and effect in accordance with the terms of such IP Contract subject to proper authorization and execution of such IP Contract by the counterparties thereto and to the Bankruptcy and Equity Exception and (b) there is no breach
or default under any IP Contract, and no event has occurred that, with the passage of time or the giving of notice or both, would constitute a breach or default by the Company, any Subsidiary of the Company or any other party thereto under any IP
Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material
Adverse Effect, and to the knowledge of the Company, (i) the Company Intellectual Property constitutes all of the Intellectual Property that is used in or necessary for the conduct of the Group Companies businesses as presently conducted
or as presently planned to be conducted, including all Intellectual Property necessary to make, have made, use, copy, prepare derivative works of, import, offer to sell, sell and otherwise distribute all products and services of the Group Companies
in the manner so done or to use the Software as they are currently used in the Group Companies businesses, (ii) no interference, opposition, reissue, reexamination, or other proceeding is or has been pending or threatened against the
Group Companies, in which the scope, validity, or enforceability of any Company Intellectual Property is being, has been, or could reasonably be expected to be contested or challenged, (iii)all registered Company Intellectual Property is valid and
subsisting, all prosecution, maintenance, renewal and other similar fees therefor have been paid and are current, and all registrations and applications therefor remain in full force and effect, (iv) all Company Intellectual Property disclosed
as owned by a Group Company belongs to such Group Company and is not the property of a third party, (v) there are no (A) Actions pending or threatened against a Group Company (including cease-and-desist letters or offers to license any
Intellectual Property), by any person alleging infringement, dilution, unauthorized disclosure, or misappropriation by any Group Company of the Intellectual Property rights of such person, or (B) challenges to the validity, enforceability or
ownership of, or the right to use, any Company Intellectual Property, (ix) the conduct of the business of the Group Companies does not infringe, dilute, or misappropriate and has not infringed, diluted, or misappropriated any Intellectual
Property rights of any person, (x) no Group Company has interfered with, infringed upon, disclosed without authorization, misused, misappropriated or otherwise violated any Intellectual Property rights, any rights of privacy (including personal
data privacy and related Laws), name, portrait, reputation, or personality under applicable Law or any personal or sensitive information (including personally identifiable information) owned by any other person, and (xi) no person is
infringing, diluting or misappropriating, or has infringed, diluted or misappropriated, any Company Intellectual Property.
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(d) Neither the execution of this Agreement nor the consummation of any
transactions contemplated hereby shall result in the loss or impairment of, or give rise to any right of a third party to terminate, any rights of the Company or any Subsidiary of the Company in or to any Company Intellectual Property.
(e) The Group Companies have taken commercially reasonable measures to protect the confidentiality, integrity, and security of
(i) the material confidential or proprietary information of the Group Companies (or third parties for which the Group Companies have a legal or contractual obligation of protection), (ii) personally identifiable information, material
confidential or proprietary information, and Trade Secrets entrusted to any Group Company by its customers, clients, or other persons to whom the such Group Company owes a duty or obligation under applicable Law or any written Contract to maintain
the security or confidentiality thereof, and (C) Trade Secrets of the Group Companies.
(f) No Group Company is in
breach of any requirements for or restrictions regarding subcontracting, sublicensing, or disclosure of Company Intellectual Property, Trade Secrets, or personally identifiable information of the Company, its Subsidiaries, or of their clients or
customers to any person (including the Companys Subsidiaries), contained in any applicable Contracts with any of the Companys or its Subsidiaries customers or clients or under applicable Law. No proceedings are pending, or, to the
knowledge of the Company, threatened against a Group Company by any person alleging a violation of such persons, or any other persons, privacy, publicity, personal or confidentiality rights by such Group Company under applicable Laws, or
a breach or other violation of any of the Group Companies internal rules, policies and procedures with respect to privacy, publicity, data protection, collection, storage, transfer, use or disclosure of personally identifiable information by
such Group Company.
SECTION 3.13 Taxes. (a) Each Group Company has timely filed all material Tax Returns required to be
filed by or with respect to such Group Company and all such Tax Returns are true, accurate and complete in all material respects.
(b) Each Group Company has paid and discharged all material Taxes due and payable (whether or not shown to be due on any Tax
Return), and where payment is not yet due, the Company has made adequate provision for such accrued Taxes in its financial statements included in the most recent Company SEC Reports in accordance with IFRS.
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(c) There are no material Liens with respect to Taxes upon any of the assets or
properties of any Group Company, other than with respect to Taxes not yet due and payable or for Taxes that are being contested in good faith by appropriate proceedings.
(d) As of the date hereof, no Governmental Authority has asserted or, to the knowledge of the Company, is threatening to assert
against any Group Company any deficiency or claim for any material Taxes.
(e) Each Group Company has properly and timely
withheld, collected and deposited all material Taxes that are required to be withheld, collected and deposited under applicable Law, and to the extent required, such Taxes have been paid to the relevant taxing authority.
(f) There is no outstanding audit, assessment, dispute or claim concerning any material Tax liability of any Group Company, nor
is one pending to the knowledge of any Group Company.
(g) No Group Company has granted any waiver of any statute of
limitations with respect to, or any extension of a period for the assessment of, any material Tax, nor has any Group Company entered into a closing agreement pursuant to section 7121 of the Code (or any similar provision of state, local or foreign
Law).
(h) There are no unresolved claims by any Governmental Authority in a jurisdiction where any Group Company does not
file Tax Returns that any Group Company is or may be subject to Taxes in such jurisdiction.
(i) No Group Company has
engaged in a trade or business, has a permanent establishment, or otherwise is Tax resident in a country other than the country of its formation.
(j) Neither the Company nor any Subsidiary that is not an Onshore Subsidiary takes the position for tax purposes that it is a
resident enterprise of the PRC.
(k) To the knowledge of the Company, no Group Company is or has been treated
as a passive foreign investment company within the meaning of Section 1297 of the Code.
(l) No Group
Company (A) is or has ever been a member of a combined, consolidated, unitary, affiliated or similar Tax group (other than a group the common parent of which is or was one of the Group Companies) or (B) has any liability for Taxes of any
person as a result of being a member of such a Tax group or arising from the application of any provision of Tax Law, or as a transferee or successor, by contract, or otherwise.
(m) No Group Company is a party to, is bound by or has any obligation under any Tax sharing or Tax indemnity agreement or
similar contract or arrangement.
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(n) No Group Company has been either a distributing corporation or a
controlled corporation in a distribution occurring during the last five (5) years in which the parties to such distribution treated the distribution as one to which Section 355 of the Code is applicable.
(o) No Group Company will be required to include amounts in income, or exclude items of deduction, in a taxable period
beginning after the Closing Date as a result of (A) a change in method of accounting occurring prior to the Closing Date, (B) an installment sale or open transaction arising in a taxable period (or portion thereof) ending on or before the
Closing Date, (C) a prepaid amount received, or paid, prior to the Closing Date or (D) deferred gains arising prior to the Closing Date.
(p) The Onshore Subsidiaries have, in accordance with applicable PRC Law, duly registered with the relevant PRC Governmental
Authority, obtained and maintained the validity of all national and local Tax registration certificates and complied with all requirements in all material respects imposed by such Governmental Authorities.
(q) The prices and terms for the provision of any property or services by or to the Group Companies are arms length for
purposes of the relevant transfer pricing Laws, and all related documentation required by such Laws has been timely prepared or obtained and, if necessary, retained. Each Group Company has provided or made available to Parent all documentation
relating to, and is in full compliance with all terms and conditions of, any Tax exemption, Tax holiday, Tax incentive or other Tax reduction agreement or order of a Governmental Authority. Any submissions made on behalf of any Group Company to any
Governmental Authority in connection with obtaining Tax exemptions, Tax holidays, Tax incentives or other Tax reduction agreement or order of a Government Authority are accurate and complete in all material respects. As of the date hereof, no
suspension, revocation or cancellation of any Tax exemption, Tax holiday, Tax incentive or other Tax reduction agreement or order of a Governmental Authority is pending or, to the knowledge of the Company, threatened. The consummation of the
transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax exemption, Tax holiday, Tax incentive or other Tax reduction agreement or order.
SECTION 3.14 Indebtedness and Security. No Group Company has any Indebtedness nor any secured creditors holding fixed or floating
security interests. No Group Company has taken any steps to seek protection pursuant to any bankruptcy law, nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any
knowledge of any fact which would reasonably lead a creditor to do so. On the date hereof, and on the Closing Date after giving effect to (a) the Transactions contemplated by this Agreement, (b) payment of all amounts required to be paid
in connection with the consummation of the transactions contemplated hereby and (c) payment of all related fees and expenses, none of the Group Companies is Insolvent.
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SECTION 3.15 Material Contracts. (a) Except for this Agreement and the Contracts
filed as exhibits to the Company SEC Reports filed with the SEC prior to the date of this Agreement, no Group Company is a party to, and no Group Companys properties or assets are bound by, any of the types of Contracts listed in clauses
(i) through (xi) of this Section 3.15(a) (such types of Contracts being the Material Contracts):
(i) each Contract that would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits to
the Companys most recently filed annual report on Form 20-F;
(ii) each Contract relating to any Indebtedness or Lien
in excess of RMB30 million;
(iii) each Contract in respect of any (A) joint venture, strategic cooperation or
collaboration arrangement, joint sales or marketing agreement, or partnership arrangement, in each case, that is material to the business of the Group Companies taken as a whole, or (B) other agreement involving a sharing of profits, losses,
costs or liabilities by any Group Company that is material to the business of the Group Companies taken as a whole;
(iv)
each Contract that involves the acquisition or disposition, directly or indirectly (by merger, license or otherwise), of any securities of any person (other than a Company Share Award) or any assets that have a fair market value or purchase price of
more than RMB30 million;
(v) each Contract with a Governmental Authority in excess of RMB30 million;
(vi) each Contract with a Major Customer or Major Supplier in excess of RMB30 million;
(vii) each Contract with a sales representative or distributor with expected aggregate annual payments by or to the Company or
any of its Subsidiaries in excess of RMB30 million;
(viii) each Contract (including any distribution agreements) that
limits, or purports to limit, the ability of any Group Company to compete in any line of business in any geographic area or during any period of time in a manner that is material to the Group Companies, taken as a whole, or any Contract that grants
any exclusive rights to any third party (including any exclusive license or exclusive distribution or usage arrangements) if such Contract, exclusive rights or restrictions resulting therefrom are material to the Group Companies, taken as a whole;
(ix) each Contract in excess of RMB1,000,000 between any Group Company, on the one hand, and any directors or officers of
any Group Company or their immediate family members or shareholders (other than the Chairman Parties) of any Group Company holding more than 5% of the voting securities of any Group Company, on the other hand, under which there are material rights
or obligations outstanding;
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(x) each Contract providing for any earn-out or similar payment payable by any
Group Company to any person (other than to another Group Company) in excess of RMB4 million;
(xi) each Contract involving
payments by the Company or any of its Subsidiaries in excess of RMB30 million in the aggregate under each Contract;
(xii)
each Contract relating to any capital expenditure or any disbursement Contract with a contract value exceeding RMB30 million;
(xiii) each share or stock redemption or purchase or other Contract affecting or relating to the share capital of the Company
or any of its Subsidiaries, including each Contract with any shareholder of the Company or any of its Subsidiaries which includes anti-dilution rights, voting arrangements or operating covenants;
(xiv) each Contract under which the Company or any of its Subsidiaries has granted any Person any registration rights, or any
right of first refusal, first offer or first negotiation with respect to any Ordinary Shares or securities of any Subsidiaries of the Company; and
(xv) each Contract that contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries could be
required to purchase or sell, as applicable, any equity interests of any Person.
(b) Except as would not, individually or
in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of a Group Company, as applicable, in full force and effect and enforceable against the such
Group Company in accordance with its terms, subject to the Bankruptcy and Equity Exception, (ii) to the Companys knowledge, each Material Contract is a legal, valid and binding obligation of the counterparty thereto, in full force and
effect and enforceable against such counterparty in accordance with its terms, subject to the Bankruptcy and Equity Exception, (iii) no Group Company and, to the Companys knowledge, no counterparty, is or is alleged to be in breach or
violation of, or default under, any Material Contract, (iv) to the Companys knowledge, no person intends to terminate any Material Contract and (v) neither the execution of this Agreement nor the consummation of any Transaction shall
constitute a material default under, give rise to cancellation rights under, or otherwise adversely affect any of the material rights of any Group Company under any Material Contract. The Company has furnished or made available to Parent true and
complete copies of all Material Contracts, including any amendments thereto.
SECTION 3.16 Environmental Matters. Except as would
not, individually or in the aggregate, reasonably be expected to be material to the Group Companies, taken as a whole, (i) each Group Company is in compliance with all applicable Environmental Laws and has obtained and possess all permits,
licenses and other authorizations currently required for their establishment and their operation under any Environmental Law (the Environmental Permits), and all such Environmental Permits are in full force and effect,
(ii) to the knowledge of the Company, no property currently or formerly owned or operated by any Group Company has been contaminated with or is releasing any Hazardous Substance in a manner that would reasonably be expected to require
remediation or other action pursuant to any Environmental Law, (iii) no Group Company has received any notice, demand, letter, claim or request for information alleging that any Group Company is in violation of or liable under any Environmental
Law, which remains unresolved, and (iv) no Group Company is subject to any order, decree or injunction with any Governmental Authority or agreement with any person concerning liability under any Environmental Law or relating to Hazardous
Substances.
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SECTION 3.17 Interested Party Transactions. None of the officers or directors of any Group
Company is presently a party to any transaction with the Company or any of its Subsidiaries which would be required to be reported under Item 404 of Regulation S-K of the SEC (other than for services as officers, directors and employees of a
Group Company), other than for (a) payment of salary or fees for services rendered in the capacity of an officer, director or employee of the Company or any of its Subsidiaries), (b) reimbursement for expenses incurred on behalf of the
Company or any of its Subsidiaries and (c) other employee benefits, including Company Share Awards, in each case, in the ordinary course of business and consistent with past practice.
SECTION 3.18 Insurance. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material
Adverse Effect, as of the date of this Agreement, (i) all insurance policies and all self-insurance programs and arrangements relating to the business, assets, liabilities and operations of the Group Companies are in full force and effect,
(ii) the Company has no reason to believe that any Group Company will not be able to (A) renew its existing insurance policies as and when such policies expire or (B) obtain comparable coverage from comparable insurers as may be
necessary to continue its business without a significant increase in cost, (iii) no Group Company has received any written notice of any threatened termination of, premium increase with respect to, or alteration of coverage under, any of its
respective insurance policies, and (iv) no Group Company has been denied any insurance coverage which it has sought or for which it has applied.
SECTION 3.19 Personal Property and Inventory. Except as would not, individually or in the aggregate, reasonably be expected to have a
Company Material Adverse Effect, the Company and each of its Subsidiaries has good and valid title to, or holds pursuant to a valid and enforceable right to use under a Contract, all of their respectively owned tangible personal properties as
necessary to conduct their respective businesses as currently conducted as of the date of this Agreement, free and clear of all Liens (except for Permitted Property Liens). All material inventory of raw materials, components, and final finished
products are in good and usable condition, has been manufactured and stored in accordance with all applicable Laws in all material respects and can reasonably be anticipated to be used and consumed in the ordinary course of business. The Company and
each of its Subsidiaries have accurate records of the location of all such material inventory and the expiration dates for all such material inventory, if applicable.
SECTION 3.20 Accounts Receivable. The accounts receivable and other receivables of the Company and each of its Subsidiaries are not
subject to any material claim of offset, recoupment, set-off or counter-claim other than in the ordinary course of business consistent with past practice. No person has any Lien on any material accounts receivable or other receivable, and no
agreement for deduction or discount has been made with respect to any of such accounts receivable or other receivable.
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SECTION 3.21 Anti-Takeover Provisions. The Company is not party to a shareholder rights
agreement, poison pill or similar agreement or plan. The Company Board has taken all necessary action so that any takeover, anti-takeover, moratorium, fair price, control share or other similar Laws enacted under
any Laws applicable to the Company (each, a Takeover Statute) does not, and will not, apply to this Agreement or the Transactions other than the CICL.
SECTION 3.22 Brokers. Except for the Financial Advisor, no broker, finder or investment banker is entitled to any brokerage,
finders or other fee or commission in connection with the Transactions based upon arrangements made by or on behalf of the Company.
SECTION 3.23 No Other Representations and Warranties. Except for the representations and warranties made by the Company in Article III
and Section 6.01(c), neither the Company nor any other person on behalf of the Company makes any other express or implied representation or warranty with respect to the Company or any of its Subsidiaries or their respective business,
operations, condition (financial or otherwise) or any information provided to Holdco, Parent and Merger Sub or any of their respective affiliates or Representatives, notwithstanding the delivery or disclosure to Holdco, Parent and Merger Sub or any
of their respective affiliates or Representatives of any documentation, forecasts or other information in connection with the Transactions, and each of Holdco, Parent and Merger Sub acknowledges the foregoing. Neither the Company nor any other
person will have or be subject to any liability or indemnity obligations to Holdco, Parent, Merger Sub or any other person resulting from the distribution or disclosure or failure to distribute or disclose to Holdco, Parent, Merger Sub or any of its
affiliates or Representatives, or their use of, any information, unless and to the extent such information is expressly included in the representations and warranties contained in this Article III or Section 6.01(c).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF HOLDCO, PARENT AND MERGER SUB
Holdco, Parent and Merger Sub hereby, jointly and severally, represent and warrant to the Company that:
SECTION 4.01 Corporate Organization. Each of Holdco, Parent and Merger Sub is an exempted company duly organized, validly existing and
in good standing under the laws of the Cayman Islands and has the requisite corporate or similar power and authority to own, lease and operate its properties and assets to carry on its business as it is now being conducted. Each of Holdco, Parent
and Merger Sub is duly qualified to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its business makes such qualification, licensing or good standing
necessary.
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SECTION 4.02 Memorandum and Articles of Association. Each of the Parent Parties has
heretofore furnished to the Company a complete and correct copy of the memorandum and articles of association or equivalent organizational documents, each as amended or modified as of the date hereof, of each of Holdco, Parent and Merger Sub. Such
memorandum and articles of association or equivalent organizational documents are in full force and effect as of the date hereof. None of the Parent Party or Merger Sub is in violation of any of the provisions of its memorandum and articles of
association or equivalent organizational documents that has materially affected, or is reasonably likely to materially affect, each of the Parent Partys or Merger Subs ability to consummate the Transactions.
SECTION 4.03 Capitalization. (a) The authorized share capital of Parent consists of 50,000 ordinary shares of a par value US$1.00 per
share. As of the date of this Agreement, 1 ordinary share is issued and outstanding, which has been duly authorized and is validly issued, fully paid and non-assessable. Except as set forth in the Rollover Agreements, there are no options, warrants,
convertible debt or other convertible instruments or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued share capital of Parent or Merger Sub or obligating Parent or Merger Sub to issue or sell
any share capital of, or other equity interests in, Parent or Merger Sub. All ordinary shares of Parent subject to issuance as aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable,
will be duly authorized, validly issued, fully paid and non-assessable.
(b) The authorized share capital of Merger Sub
consists of 50,000 ordinary shares of a par value US$1.00 per share. As of the date of this Agreement, 1 ordinary share is issued and outstanding, which has been duly authorized and is validly issued, fully paid and non-assessable, and free of any
preemptive rights in respect thereof and which is owned by Parent. The outstanding ordinary share of Merger Sub is, and immediately prior to the Effective Time will be, owned by Parent, free and clear of all Liens.
SECTION 4.04 Authority Relative to This Agreement. Each of Holdco, Parent and Merger Sub has all necessary corporate power and
authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the Transactions. The execution, delivery and performance by Holdco, Parent and Merger Sub of this Agreement and the consummation by Holdco,
Parent and Merger Sub of the Transactions have been duly and validly authorized by all necessary corporate action, and no other corporate action on the part of Holdco, Parent or Merger Sub and no vote of the Parent or Holdco are necessary to
authorize the execution and delivery of this Agreement by Parent and Merger Sub and the Plan of Merger by Merger Sub and the consummation by them of the Transactions (other than the filings, notifications and other obligations and actions described
in Section 4.05(b)). This Agreement has been duly and validly executed and delivered by Holdco, Parent and Merger Sub and, assuming due authorization, execution and delivery by the Company, constitutes a legal, valid and binding obligation of
each of Holdco, Parent and Merger Sub, enforceable against each of Holdco, Parent and Merger Sub in accordance with its terms, subject to the Bankruptcy and Equity Exception.
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SECTION 4.05 No Conflict; Required Filings and Consents. (a) The execution and delivery of
this Agreement by Holdco, Parent and Merger Sub do not, and the performance of this Agreement by Holdco, Parent and Merger Sub and consummation of the Transactions will not, (i) conflict with or violate the memorandum and articles of
association of any of Holdco, Parent or Merger Sub, (ii) assuming (solely with respect to performance of this Agreement and the consummation of the Transactions) that all consents, approvals, authorizations and other actions described in
Section 4.05(b) have been obtained prior to the Effective Time and all filings and obligations described in Section 4.05(b) have been made and any waiting periods thereunder will have terminated or expired prior to the Effective Time,
conflict with or violate any Law applicable to Holdco, Parent or Merger Sub or by which any property or asset of either of them is bound or affected, or (iii) result in any breach of, or constitute a default (or an event which, with notice or
lapse of time or both, would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of any Lien or other encumbrance on any property or asset of Holdco, Parent or
Merger Sub pursuant to, any Contract or obligation to which Holdco, Parent or Merger Sub is a party or by which any property or asset of either of them is bound or affected, except, with respect to clauses (ii) and (iii), for any such conflict,
violation, breach, default, right or other occurrence which would not, individually or in the aggregate, reasonably be expected to prevent or materially delay consummation of the Transactions by Holdco, Parent or Merger Sub.
(b) The execution and delivery of this Agreement by Holdco, Parent and Merger Sub do not, and the performance of this Agreement
by Holdco, Parent and Merger Sub and the consummation by Holdco, Parent and Merger Sub of the Transactions will not, require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Authority or any
other person, except (i) for compliance with the applicable requirements of any federal or state securities Laws, including Section 13 of the Exchange Act and the rules and regulations promulgated thereunder (including the filing of a
Schedule 13E-3 and furnishing of the Proxy Statement, and the filing or furnishing of one or more amendments to the Schedule 13E-3 and Proxy Statement to respond to comments of the SEC, if any, on such documents), (ii) for compliance with the
rules and regulations of NYSE, (iii) for the filing of the Plan of Merger and related documentation with the Registrar of Companies of the Cayman Islands and publication of notice of the Merger in the Cayman Islands Government Gazette pursuant
to the CICL, (iv) for compliance with the registration and filing of the documents as required by applicable laws and regulations in connection with overseas investment with the Guangdong Provincial Development and Reform Commission and the
Department of Commerce of Guangdong Province and for compliance with the foreign exchange registration with competent local commercial banks as required by applicable foreign exchange rules and regulations (the Parent Requisite Regulatory
Approvals and, together with the Company Requisite Regulatory Approvals, the Requisite Regulatory Approvals), and (v) where the failure to obtain or make, as applicable, any such consent, approval, authorization or
permit of, or filing with or notification to, any Governmental Authority would not, individually or in the aggregate, be expected to, prevent or materially delay consummation of any of the Transactions by Holdco, Parent or Merger Sub.
SECTION 4.06 Absence of Litigation. As of the date of this Agreement, there is no material Action pending or, to the knowledge of the
Parent Parties, threatened against any of Holdco, Parent or Merger Sub, or any share, security, equity interest, property or asset of any of Holdco, Parent or Merger Sub, before any Governmental Authority, except as would not, individually or in the
aggregate, prevent or materially delay consummation of the Transaction by Holdco, Parent or Merger Sub. As of the date of this Agreement, none of Holdco, Parent or Merger Sub or any property or asset of any of Holdco, Parent or Merger Sub is subject
to any continuing order of, consent decree, settlement agreement or other similar written agreement with, or, to the knowledge of the Parent Parties, any continuing investigation by, any Governmental Authority, or any order, writ, judgement,
injunction, decree, determination or award of any Governmental Authority, except as would not, individually or in the aggregate, prevent or materially delay consummation of the Transaction by Holdco, Parent or Merger Sub.
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SECTION 4.07 Financing; Equity Rollover.
(a) Parent has delivered to the Company true and correct copies of (i) an executed debt commitment letter from the
financial institutions named therein (as the same may be amended or modified pursuant to Section 6.14, the Debt Commitment Letter) confirming their respective commitments, subject to the terms and conditions therein, to
provide or cause to be provided the aggregate debt amounts set forth therein for the purpose of financing the Transactions (the Debt Financing), (ii) executed equity commitment letters from the Chairman and certain affiliates
of the Sponsors (the Equity Commitment Letters) pursuant to which each such Person has committed to contribute, or cause to be contributed, through one or more direct or indirect capital contributions (which contributions may take
the form of ordinary equity, shareholder loans, preferred equity or other securities) to Holdco (for further direct or indirect capital contributions to Parent (which contributions may take the form of ordinary equity, shareholder loans, preferred
equity or other securities)) or Parent, as applicable, up to the aggregate amount set forth therein (the Equity Financing), the proceeds of which shall be used by Parent to pay (or to cause to be paid) the Merger Consideration and
any other amounts required to be paid pursuant to this Agreement and (iii) the Rollover Agreements (together with the Debt Commitment Letter and the Equity Commitment Letters, the Financing Commitments) pursuant to which,
subject to the terms and conditions therein, the Rollover Securityholders have agreed to receive no cash consideration for their Rollover Securities, which will be converted into ordinary shares of the Surviving Company at the Effective Time and to
consummate the Transactions (together with the Debt Financing and the Equity Financing, the Financing). The Equity Commitment Letters provide, and will continue to provide, that the Company is a third party beneficiary with
respect to the provisions therein.
(b) As of the date hereof, (i) the Financing Commitments, in the form so
delivered, are in full force and effect and are the legal, valid and binding obligations of Holdco and, to the knowledge of the Parent Parties, of the parties thereto, enforceable in accordance with the terms and conditions thereof, (ii) none
of the Financing Commitments have been amended or modified and no such amendment or modification is contemplated, (iii) the respective commitments contained in the Financing Commitments have not been withdrawn, terminated or rescinded in any
respect and to the knowledge of the Parent Parties, no such withdrawal termination or restriction is contemplated and (iv) no event has occurred that (with or without notice, lapse of time, or both) would constitute a breach or default under
the Financing Commitments by any of Holdco, Parent or Merger Sub and, to the knowledge of the Parent Parties, by the other parties thereto. Assuming the Financing is funded in accordance with the terms and conditions of the Financing Commitments,
the proceeds contemplated by the Financing Commitments will be sufficient for Merger Sub, to (1) consummate the Transactions on the terms contemplated by this Agreement, and (2) pay any other amounts required to be paid in connection with
the consummation of the Transactions upon the terms and conditions contemplated hereby and all related fees and expenses associated therewith. The obligations of the financing sources to fund the commitments under the Financing Commitments are not
subject to any contractual conditions other than as set forth in the Financing Commitments. The Financing Commitments contain all of the conditions precedent to the obligations of the parties thereunder to make the Financing available to Holdco,
Parent or Merger Sub on the terms and conditions therein. As of the date hereof, assuming the satisfaction of the conditions precedent set forth in Article VII, Holdco, Parent and Merger Sub do not have any reason to believe that any of the
conditions to the Financing will not be satisfied or that the Financing will not be available to Holdco, Parent and Merger Sub at the time required to consummate the Transactions. As of the date hereof, none of Holdco, Parent and Merger Sub has any
outstanding obligation to pay any commitment fees or other fees in connection with the Financing Commitments in connection with the execution of this Agreement, and Holdco, Parent and Merger Sub will after the date hereof pay when due all other fees
arising under the Financing Commitments as and when they become due and payable thereunder. Except as set forth in the Commitment Letters and the related fee letter, there are no side letters or other oral or written Contracts to which Holdco,
Parent, Merger Sub or any of their respective affiliates is a party that impose conditions to the funding or investing, as applicable, of the full amount of the Financing.
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SECTION 4.08 Limited Guarantees. Concurrently with the execution of this Agreement, the
Parent Parties have caused each of the Guarantors to deliver to the Company a duly executed Limited Guarantee. Assuming the due authorization, execution and delivery by the Company, each of the Limited Guarantees is in full force and effect and
constitutes a legal, valid and binding obligation of the corresponding Guarantor, and no event has occurred, which, with or without notice, lapse of time or both, would constitute a default on the part of a Guarantor under the relevant Limited
Guarantee.
SECTION 4.09 Brokers. No broker, finder or investment banker or other person is entitled to any brokerage,
finders, financial advisors or other fee or commission in connection with the Transactions based upon arrangements made by or on behalf of Holdco, Parent or Merger Sub.
SECTION 4.10 Ownership of Company Shares. Other than the Rollover Securities (and as a result of this Agreement and the Rollover
Agreements) and any Company Share Awards, none of Holdco, Parent nor Merger Sub beneficially owns (as such term is used in Rule 13d-3 promulgated under the Exchange Act) any Ordinary Shares or other securities or any other economic interest
(through derivative securities or otherwise) of the Company or any options, warrants or other rights to acquire any Ordinary Shares or other securities of, or any other economic interest (through derivatives securities or otherwise) in the Company.
SECTION 4.11 Independent Investigation. Holdco, Parent and Merger Sub have conducted their own independent investigation, review
and analysis of the business, operations, assets, liabilities, results of operations, financial condition and prospects of the Company and Subsidiaries of the Company, which investigation, review, and analysis was performed by Holdco, Parent and
Merger Sub, their respective affiliates and Representatives. Each of Holdco, Parent and Merger Sub acknowledge that as the date of this Agreement, it, its affiliates and their respective Representatives have been provided adequate access to the
personnel, properties, facilities and records of the Company and the Subsidiaries of the Company for such purpose. In entering into this Agreement, each of Holdco, Parent and Merger Sub acknowledges that it has relied solely upon the aforementioned
investigation, review and analysis and not on any statements, representations or opinions of any of the Company, the Subsidiaries of the Company or their respective Representatives (except the representations, warranties, covenants and agreements of
the Company set forth in this Agreement and in any certificate delivered pursuant to this Agreement).
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SECTION 4.12 Buyer Group Contracts. Parent has delivered to the Company a true, correct
and complete copy of each of the Buyer Group Contracts. As of the date hereof, other than the Buyer Group Contracts and any documents or agreements with respect to the shareholder arrangements of Holdco, Parent or the Surviving Corporation (or any
equity holder of Holdco), there are (a) no side letters or other contracts (whether oral or written) relating to the Transactions between two or more of the following persons: each of the Rollover Securityholders, Holdco, Parent, Merger Sub,
Guarantor or any of their respective affiliates, and (b) no contracts (whether oral or written) (i) between Holdco, Parent, Merger Sub or any of their affiliates (excluding the Company and its Subsidiaries), on the one hand, and any of the
Companys or its Subsidiaries directors, officers, employees or shareholders, on the other hand, that relate in any way to the Transactions, or (ii) pursuant to which any shareholder of the Company would be entitled to receive
consideration of a different amount or nature than the Per Share Merger Consideration or Per ADS Merger Consideration, or (iii) pursuant to which any shareholder of the Company has agreed to vote to approve this Agreement or the Merger or has
agreed to vote against any Superior Proposal, or (iv) pursuant to which any person has agreed to provide, directly or indirectly, equity capital to Holdco, Parent, Merger Sub or the Company to finance in whole or in part the Merger.
SECTION 4.13 Non-reliance on Company Estimates. The Company has made available to Holdco, Parent and Merger Sub, and may continue to
make available, certain estimates, projections and other forecasts for the business of the Company and the Company Subsidiaries and certain plan and budget information. Each of Holdco, Parent and Merger Sub acknowledges that these estimates,
projections, forecasts, plans and budgets and the assumptions on which they are based were prepared for specific purposes and may vary significantly from each other. Further, each of Holdco, Parent and Merger Sub acknowledges that there are
uncertainties inherent in attempting to make such estimates, projections, forecasts, plans and budgets, that each of Holdco, Parent and Merger Sub are taking full responsibility for making its own evaluation of the adequacy and accuracy of all
estimates, projections, forecasts, plans and budgets so furnished to them (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, plans and budgets), and that neither of Holdco, Parent nor Merger Sub is
replying on any estimates, projections, forecasts, plans or budgets furnished by the Company, the Subsidiaries of the Company or their respective affiliates and Representatives, and each of Holdco, Parent and Merger Sub shall not, and shall cause
its affiliates and their respective Representatives not to, hold any such person liable with respect thereto. Nothing in this Section 4.13 shall be deemed to limit in any respect the representations and warranties of the Company contained in
Article III.
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SECTION 4.13 No Other Representations and Warranties. Except for the representations and
warranties made by Holdco, Parent and Merger Sub in Article IV and Section 6.01(b), none of Holdco, Parent or Merger Sub nor any other person on behalf of Holdco, Parent or Merger Sub makes any other express or implied representation or
warranty with respect to Holdco, Parent or Merger Sub or their respective business, operations, condition (financial or otherwise) or any information provided to the Company or any of its affiliates or Representatives, notwithstanding the delivery
or disclosure to the Company or any of its affiliates or Representatives of any documentation, forecasts or other information in connection with the Transactions, and the Company acknowledges the foregoing.
ARTICLE V
CONDUCT OF
BUSINESS PENDING THE MERGER
SECTION 5.01 Conduct of Business by the Company Pending the Merger. (a) The Company agrees
that, between the date of this Agreement and the Effective Time, except as required by applicable Law, unless Parent shall otherwise provide its prior written consent (which consent shall not be unreasonably withheld):
(i) the businesses of the Group Companies shall be conducted only in, and no Group Company shall take any action except in, a
lawfully permitted manner in the ordinary course of business consistent with past practice; and
(ii) the Company shall use
its reasonable best efforts to preserve substantially intact the business organization of the Group Companies, maintain in effect all Material Company Permits, keep available the services of the current officers, key employees, and key consultants
and contractors of the Group Companies and preserve the current material relationships and goodwill of the Group Companies with Governmental Authorities, key customers and suppliers, and any other persons with which any Group Company has relations.
(b) In furtherance and without limitation of Section 5.01(a), except as required by applicable Law, the Company will
not, and will not permit any of its Subsidiaries to, between the date of this Agreement and the Effective Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parent:
(i) amend or otherwise change the memorandum and articles of association or equivalent organizational documents of the Company,
or make any material amendments to the memorandum and articles of association or equivalent organizational documents of any other Group Company;
(ii) issue, sell, transfer, lease, sublease, license, pledge, dispose of, grant or encumber, or authorize the issuance, sale,
transfer, lease, sublease, license, pledge, disposition, grant or encumbrance of, (A) any shares of any class of any Group Company, or any options, warrants, convertible securities or other rights of any kind (including any Company Share Award)
to acquire any shares, or any other ownership interest (including, without limitation, any phantom interest), of any Group Company (other than (x) in connection with the exercise or settlement of any Company Share Awards outstanding on the date
hereof in accordance with the Share Incentive Plan and applicable award agreement or (y) in transactions solely among the Companys wholly-owned Subsidiaries or between the Company and any of its wholly-owned Subsidiaries), or (B) any
property or assets (whether real, personal or mixed, and including leasehold interests, intangible property and intellectual property) with a value in excess of RMB30 million of the Company or any Subsidiary (other than (x) sale of such
property or assets (including inventory) in the ordinary course of business and consistent with past practice or (y) in transactions solely among the Companys wholly-owned Subsidiaries or between the Company and any of its wholly-owned
Subsidiaries);
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(iii) declare, set aside, make or pay any dividend or other distribution, payable
in cash, shares, property or otherwise, with respect to any of its shares, other than dividends or other distributions from any Group Company to the Company or another Group Company which is wholly-owned by the Company;
(iv) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its
shares, or any options, warrants, convertible securities or other rights exchangeable into or convertible or exercisable for any of its share capital, in each case other than in connection with the settlement of any Company Share Awards in
accordance with the Share Incentive Plan and this Agreement;
(v) (A) effect or commence any liquidation, dissolution,
scheme of arrangement, merger, consolidation, amalgamation, recapitalization, restructuring, reorganization or similar transaction involving any Group Company (other than the Merger or any merger or consolidation among wholly-owned Subsidiaries of
the Company), or (B) create any new Subsidiaries;
(vi) (A) acquire (including, without limitation, by merger,
consolidation, scheme of arrangement, amalgamation or acquisition of stock or assets or any other business combination) or make any capital contribution or investment in any corporation, partnership, other business organization or any division
thereof (other than a wholly-owned Subsidiary of the Company), or (B) acquire any assets (other than (x) in the ordinary course of business consistent with past practice or (y) assets of a wholly-owned Subsidiary of the Company);
(vii) (A) incur, assume, alter, amend or modify any Indebtedness, guarantee any Indebtedness, or issue any debt securities, in
each case, in excess of RMB30 million individually or RMB30 million in the aggregate, or (B) make (x) any loans or advances to any director or executive officer of the Company or (y) any loans or advances in excess of RMB2 million
individually or RMB10 million in the aggregate to any other person;
(viii) create or grant any Lien on any assets
(including Company Intellectual Property) of any Subsidiaries of the Company other than in the ordinary course of business consistent with past practice;
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(ix) (A) authorize, or make any commitment with respect to, any single capital
expenditure which is in excess of RMB10 million, unless specifically included in the Companys current budget and operating plan approved by the Company Board, or (B) authorize or make any commitment with respect to capital expenditures
which are, in the aggregate (including capital expenditures included in the Companys budget and operating plan), in excess of RMB30 million for the Group Companies taken as a whole, in each case other than ordinary course expenditures
necessary to maintain existing assets in good repair; or
(x) guarantee the performance or other obligations of any person
(other than guarantees in connection with any Indebtedness as permitted by the foregoing clause (vii));
(xi) except as
otherwise required by Law or pursuant to any Company Employee Plan in existence as of the date hereof, (A) enter into any new employment or compensatory agreements in connection with employment or service (including the renewal of any such
agreements), or terminate or amend any such agreements, with any director or officer of any Group Company or any other employee or individual service provider of any Group Company who has an annual base salary in excess of RMB400,000, (B) grant
or provide any material severance or termination payments or benefits to any director, officer, employee or individual service provider of any Group Company, (C) materially increase the compensation, bonus or pension, welfare, severance or
other benefits of, pay any bonus to, or grant, issue or make any new equity awards to any director, officer, employee or individual service provider of any Group Company, except annual base salary increases to non-officer employees of any Group
Company made in the ordinary course consistent with past practice, (D) establish, adopt, amend or terminate any Company Employee Plan or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Company Employee
Plan if it were in existence as of the date of this Agreement or, except as otherwise expressly set forth in this Agreement, amend the terms of any outstanding Company Share Awards, (E) except as otherwise expressly set forth in this Agreement,
with respect to Company Share Awards, take any action to accelerate or otherwise alter the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under the Company Employee Plan, to the extent not already
required in any such plan, or (F) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Employee Plan or to change the manner in which contributions to such plans are made or the basis on
which such contributions are determined, except as may be required by IFRS;
(xii) make any material changes with respect
to any method of financial accounting, or financial accounting policies or procedures, including material changes affecting the reported consolidated assets, liabilities or results of operations of any Group Companies except as required by changes
in IFRS or applicable Law;
(xiii) enter into, or materially amend or modify, or consent to the termination of any Material
Contract (or any Contract that would be a Material Contract if such Contract had been entered into prior to the date hereof), or amend, waive, modify or consent to the termination of the Companys or any Subsidiarys material rights
thereunder, or fail to comply with or breach in any material respect any Material Contract;
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(xiv) terminate or cancel, let lapse, or amend or modify in any material respect,
other than renewals in the ordinary course of business, any material insurance policies maintained by it which is not promptly replaced by a comparable amount of insurance coverage with reputable independent insurance companies or underwriters;
(xv) commence any material Action (other than in respect of collection of amounts owed in the ordinary course of business) or
settle any Action other than any settlement involving only the payment of monetary damages not in excess of RMB5 million not relating to this Agreement or the Transactions;
(xvi) engage in the conduct of any new line of business material to the Group Companies, taken as a whole;
(xvii) permit any item of material Business Intellectual Property to lapse or to be abandoned, dedicated, or disclaimed, fail
to perform or make any applicable filings, recordings or other similar actions or filings with respect to material Business Intellectual Property, or fail to pay all required fees and taxes required or advisable to maintain and protect its interest
in material Business Intellectual Property;
(xviii) fail to make in a timely manner any filings or registrations with the
SEC required under the Securities Act or the Exchange Act or the rules and regulations promulgated thereunder;
(xix) make
or change any material Tax election, amend any material Tax Return, enter into any material closing agreement with respect to Taxes, surrender any right to claim a material refund of Taxes, settle or finally resolve any material controversy with
respect to Taxes, consent to any extension or waiver of the statute of limitations applicable to any Tax claim or assessment relating to the Group Companies, or change any method of Tax accounting;
(xx) do any other act which would reasonably cause any representation or warranty of the Company in this Agreement to be or
become untrue in any material respect or intentionally omit to take any action necessary to prevent any such representation or warranty from being untrue in any material respect at any time as of which it is given;
(xxi) take any action which would be reasonably likely to result in a Company Material Adverse Effect; or
(xxii) authorize or agree to take any of the foregoing actions, or enter into any letter of intent (binding or non-binding) or
similar written agreement or arrangement with respect to any of the foregoing.
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ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.01 Proxy Statement and Schedule 13E-3. (a) Promptly following the date hereof, the Company, with the assistance of
Holdco, Parent and Merger Sub, shall prepare and cause to be filed with the SEC a proxy statement relating to the approval of this Agreement, the Plan of Merger and the Transactions by the shareholders of the Company, including the Merger (such
proxy statement, as amended or supplemented, being referred to herein as the Proxy Statement). Subject to and without limiting the rights of the Special Committee and the Company Board to effect a Change in Company Recommendation
pursuant to and in accordance with Section 6.04(d), the Proxy Statement shall include the Company Recommendation. Concurrently with the preparation of the Proxy Statement, the Company, Holdco, Parent and Merger Sub shall jointly prepare and
cause to be filed a Schedule 13E-3 with the SEC. Each of the Company, Holdco, Parent and Merger Sub shall use its reasonable best efforts so that the Schedule 13E-3 will comply as to form in all material respects with the requirements of the
Exchange Act and the rules and regulations promulgated thereunder. Each of the Company, Holdco, Parent and Merger Sub shall use its reasonable best efforts to respond promptly to any comments of the SEC with respect to the Proxy Statement and
Schedule 13E-3. Each of the Company, Holdco, Parent and Merger Sub shall furnish all information concerning such party to the other as may be reasonably requested in connection with the preparation, filing and distribution of the Proxy Statement and
Schedule 13E-3. The Company shall promptly notify Parent upon the receipt of any comments from the SEC or its staff or any request from the SEC or its staff for amendments or supplements to the Proxy Statement and Schedule 13E-3 and shall provide
Parent with copies of all correspondence between it and its Representatives, on the one hand, and the SEC and its staff, on the other hand. Prior to filing or mailing the Proxy Statement and Schedule 13E-3 (or any amendment or supplement thereto) or
responding to any comments of the SEC with respect thereto, the Company (i) shall provide Parent a reasonable opportunity to review and comment on such document or response, and (ii) shall consider in good faith and take into account those
comments reasonably proposed by Parent and its counsel. Notwithstanding the foregoing or anything else herein to the contrary, and subject to compliance with the terms of Section 6.04, in connection with any disclosure regarding a Change in
Company Recommendation, the Company shall not be required to provide Parent the opportunity to review or comment on (or include comments proposed by Parent in) the portion of the Schedule 13E-3 or the Proxy Statement, any amendment or supplement
thereto, or any other filing by the Company with the SEC, solely with respect to such disclosure. If at any time prior to the Shareholders Meeting, any information relating to the Company, Holdco, Parent and Merger Sub or any of their
respective affiliates, officers or directors, is discovered by the Company, Holdco, Parent and Merger Sub which should be set forth in an amendment or supplement to the Proxy Statement and Schedule 13E-3 so that the Proxy Statement and Schedule
13E-3 shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not
misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be filed with the SEC and, to the extent required by applicable Law,
disseminated to the shareholders of the Company; provided that prior to such filing, the Company, Holdco, Parent and Merger Sub, as the case may be, shall consult with the other Parties with respect to such amendment or supplement and shall
afford the other Parties and their Representatives reasonable opportunity to comment thereon.
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(b) Holdco and Parent represent and covenant that the information supplied by
them for inclusion in the Proxy Statement and Schedule 13E-3 will not, at (i) the time the Proxy Statement and Schedule 13E-3 (or any amendment thereof or supplement thereto) are filed with the SEC, (ii) the time the Proxy Statement (or
any amendment thereof or supplement thereto) is first mailed to the shareholders of the Company, and (iii) the time of the Shareholders Meeting, contain any untrue statement of a material fact or fail to state any material fact required
to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made by Holdco, Parent or
Merger Sub with respect to information supplied by or on behalf of the Company for inclusion or incorporation by reference in the Proxy Statement or Schedule 13E-3.
(c) The Company represents and covenants that the information supplied by the Company for inclusion in the Proxy Statement and
Schedule 13E-3 will not, at (i) the time the Proxy Statement and Schedule 13E-3 (or any amendment thereof or supplement thereto) are filed with the SEC, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is
first mailed to the shareholders of the Company, and (iii) the time of the Shareholders Meeting, contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made by the Company with respect to information supplied by or on behalf of
Holdco, Parent or Merger Sub for inclusion or incorporation by reference in the Proxy Statement or Schedule 13E-3. The Company covenants that all documents that the Company is responsible for filing with and/or furnishing to the SEC in connection
with any of the Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the rules and regulations promulgated thereunder, other than with respect to any
information supplied by Holdco, Parent or Merger Sub.
SECTION 6.02 Company Shareholders Meeting. (a) As soon as
reasonably practicable following the date of this Agreement, the Company shall cause a definitive Proxy Statement, letter to shareholders, notice of meeting and form of proxy accompanying the definitive Proxy Statement that will be provided to the
holders of Ordinary Shares in connection with the solicitation of proxies for use at the Shareholders Meeting, to be mailed to the holders of Ordinary Shares at the earliest reasonably practicable date after the date that the SEC confirms it
has no further comments, and, if necessary in order to comply with applicable Laws, after the Proxy Statement shall have been so mailed, promptly circulate amended, supplemental or supplemented proxy material, and, if required in connection
therewith, re-solicit proxies.
(b) As promptly as reasonably practicable after the SEC confirms that it has no further
comments on the Schedule 13E-3 and Proxy Statement, subject to the right of the Company to terminate this Agreement pursuant to Section 6.04(d), the Company shall take, in accordance with applicable Law and its memorandum and articles of
association, regardless of whether the Company Board or Special Committee has determined at any time that this Agreement is no longer advisable or effects a Change in in the Company Recommendation, all actions reasonably necessary to (i) call,
give notice of, set a record date for, and convene the shareholders meeting for the purpose of obtaining the Requisite Company Vote (the Shareholders Meeting), (ii) instruct or otherwise cause the Depositary to
(A) fix the record date established by the Company for the Shareholders Meeting as the record date for determining the holders of ADSs who shall be entitled to give instructions for the exercise of the voting rights pertaining to the
Ordinary Shares represented by ADSs (the Record ADS Holders), (B) provide all proxy solicitation and voting materials to all Record ADS Holders and (C) vote all Ordinary Shares represented by ADSs in accordance with the
instructions of such corresponding Record ADS Holders. Except with the prior written consent of Parent, the only matter (other than procedural matters) that shall be proposed to be acted upon by the shareholders of the Company at the
Shareholders Meeting shall be approval of this Agreement, the Plan of Merger and the Merger.
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(c) The Company may, and Parent may request that the Company, adjourn or postpone
the Shareholders Meeting for up to thirty (30) days (but in any event no later than five (5) Business Days prior to the Termination Date) (x) if as of the time for which the Shareholders Meeting is originally scheduled (as
set forth in the Proxy Statement) there are insufficient Ordinary Shares represented (either in person or by proxy) (A) to constitute a quorum necessary to conduct the business of the Shareholders Meeting or (B) voting in favor of
approval of this Agreement and the Transactions to obtain the Requisite Company Vote or (y) at the reasonable request of any party hereto, in order to allow reasonable additional time for the filing and, if necessary or desirable, mailing of
any supplemental or amended disclosure to be reviewed by the Companys shareholders prior to the Shareholders Meeting, in which event the Company shall, in each case, cause the Shareholders Meeting to be adjourned or postponed.
(d) Once the Company has established the record date, the Company shall not change such record date or establish a different
record date for the Shareholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed), unless required to do so by applicable Law, the memorandum and articles of
association of the Company, or failure to do so would violate the directors fiduciary duties under applicable Law. In the event that the date of the Shareholders Meeting as originally called is for any reason adjourned or postponed or
otherwise delayed, the Company agrees that, unless Parent shall have otherwise approved in writing, it shall implement such adjournment or postponement or other delay in such a way that the Company does not establish a new record date for the
Shareholders Meeting, as so adjourned, postponed or delayed, except as required by applicable Law or the memorandum and articles of association of the Company, or if failure to do so would violate the directors fiduciary duties under
applicable Law.
(e) Subject to Section 6.04(d), the Company Board shall recommend to holders of the Ordinary Shares
that they approve and authorize this Agreement, the Plan of Merger and the Transactions, and shall include such recommendation in the Proxy Statement. Unless there has been a Change in Company Recommendation pursuant to Section 6.04(c), the
Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the approval of this Agreement, the Plan of Merger and the Transactions and shall take all other actions reasonably necessary or advisable to secure
the Requisite Company Vote.
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(f) Subject to the Companys right to effect a Change in Company
Recommendation pursuant to and in accordance with Section 6.04(d), unless this Agreement has been validly terminated pursuant to Article VIII, the obligations of the Company under this Section 6.02 shall not be limited or otherwise affected by
the commencement, disclosure, announcement or submission to it of any Acquisition Proposal, or by any Change in the Company Recommendation. Notwithstanding anything to the contrary in this Agreement, unless this Agreement has been validly terminated
pursuant to Article VIII, the Company shall comply with all of its obligations under Section 6.01 and Section 6.02 to prepare, file and disseminate the Proxy Statement, establish a record date and meeting date for the Shareholders Meeting
and call and hold the Shareholders Meeting.
SECTION 6.03 Access to Information. (a) From the date hereof until the
Effective Time and subject to applicable Law, upon reasonable advance notice from Parent, the Company shall (i) provide to Parent and its Representatives reasonable access during normal business hours to the offices, properties, books and
records of the Group Companies, (ii) furnish to Parent and its Representatives such existing financial and operating data and other existing information as such persons may reasonably request, and (iii) instruct the Representatives of the
Group Companies to reasonably cooperate with Parent and its Representatives in its investigation; provided that the Company shall not be required to (A) furnish, or provide access to, any information to any person not a party to, or
otherwise covered by, the Confidentiality Agreements with respect to such information, or (B) provide access to or furnish any information if doing so would (x) violate any Contract with any third party or any applicable Law, or
(y) cause any Group Company, upon advice of outside legal counsel, to waive any privilege with respect to such information, provided that the Company shall take all commercially reasonable steps to permit inspection of or to disclose
such information on a basis that does not waive such Group Companys privilege with respect thereto, including, without limitation, by means of a joint interest or defense agreement.
(b) No investigation pursuant to this Section 6.03 shall affect any representation or warranty in this Agreement of any
party hereto or any condition to the obligations of the parties hereto.
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SECTION 6.04 No Solicitation of Transactions. (a) The Company agrees that no Group
Company and none of the directors or officers of any Group Company shall, and that it shall cause its and its Subsidiaries Representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any
Group Company), not to, in each case, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing information in a manner designed to encourage), or take any other action to facilitate, any inquiries or the making
of any Acquisition Proposal (including, without limitation, any proposal or offer to its shareholders) that constitutes, or could reasonably be expected to lead to, any Acquisition Proposal, or (ii) enter into, maintain or continue discussions
or negotiations with, or provide any nonpublic information relating to any Group Company or the Transactions to, any person or entity in connection with, or in order to obtain, an Acquisition Proposal, or (iii) agree to, approve, adopt, endorse
or recommend (or publicly propose to agree to approve, adopt, endorse or recommend) any Acquisition Proposal, or enter into any Alternative Acquisition Agreement, or consummate, any Acquisition Proposal, or (iv) authorize or permit any of the
officers, directors or Representatives of any Group Company to take any action set forth in clauses (a)(i) (a)(iii) of this Section 6.04 (in each case, other than to the extent expressly permitted pursuant to Section 6.04(b),
6.04(c) or 6.04(d)). The Company shall notify Parent as promptly as practicable (and in any event within twenty-four (24) hours after the Company has knowledge thereof), orally and in writing, of any proposal or offer, or any request for
information or other inquiry or request, that could reasonably be expected to lead to an Acquisition Proposal, specifying (x) the material terms and conditions thereof (including material amendments or proposed material amendments) and
providing, if applicable, copies of any written requests, proposals or offers, including proposed agreements, (y) the identity of the party making such proposal or offer or inquiry or contact, and (z) whether the Company has any intention
to provide confidential information to such person. The Company shall keep Parent informed, on a reasonably current basis (and in any event within twenty-four (24) hours of the occurrence of any material changes, developments, discussions or
negotiations) of the status and terms of any such proposal, offer, inquiry, contact or request and of any material changes in the status and terms of any such proposal, offer, inquiry, contact or request (including the material terms and conditions
thereof) and providing, if applicable, copies of any written requests, proposals or offers, including proposed agreements. Without limiting the foregoing, the Company shall (A) promptly notify Parent orally and in writing if it determines to
initiate actions concerning a proposal, offer, inquiry, contact or request, in each case as permitted by this Section 6.04, and (B) provide Parent with forty-eight (48) hours prior notice (or such lesser prior notice as is provided to
the members of the Company Board or members of the Special Committee) of any meeting of the Company Board or Special Committee at which the Company Board or Special Committee, as applicable, may consider any Acquisition Proposal. The Company
immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to an Acquisition Proposal. The Company shall not, and shall cause its Subsidiaries not to, enter into any
confidentiality agreement with any Third Party which prohibits the Company from providing such information to Parent, or release any Third Party from, or waive any provision of, any confidentiality or standstill agreement in connection with an
Acquisition Proposal, other than as expressed permitted under this Section 6.04.
(b) Subject to compliance with the
other provisions of this Section 6.04, prior to obtaining the Requisite Company Vote, the Company Board may directly or indirectly through the Companys Representatives (i) contact any Third Party that has made an unsolicited,
written, bona fide proposal or offer regarding an Acquisition Proposal that was not initiated or solicited in breach of Section 6.04(a) solely in order to clarify the terms and conditions thereof so as to assess whether such proposal or offer
constitutes or is reasonably expected to result in a Superior Proposal, and (ii) furnish information to, and enter into discussions with, such Third Party to the extent the Special Committee has (A) determined in good faith (after
consultation with a financial advisor who shall be an independent internationally recognized investment banking firm and outside legal counsel) that such proposal or offer constitutes or is reasonably likely to result in a Superior Proposal, and
that, in light of such Superior Proposal, failure to furnish such information to or enter into discussions with such Third Party would be inconsistent with the directors fiduciary duties under applicable Law, and (B) obtained from such
person an executed confidentiality agreement on terms no less favorable to the Company in the aggregate than those contained in the Confidentiality Agreements (it being understood that such confidentiality agreement and any related agreements shall
not include any provision for any exclusive right to negotiate with such party or having the effect of prohibiting the Company from satisfying its obligations under this Agreement and shall otherwise be on no less favorable terms to the Company than
the Confidentiality Agreements); provided that the Company shall provide written notice to Parent at least two (2) Business Days prior to taking any action set forth in clauses (b)(i) or (b)(ii) of this Section 6.04 and shall
concurrently make available to Parent any information concerning any Group Company that is provided to any such person and that was not previously made available to Parent or its Representatives.
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(c) Except as set forth in Section 6.04(d) (and, for the avoidance of doubt, the
proviso to this Section 6.04(c)), neither the Company Board nor any committee thereof shall (i) (A) withhold, withdraw, qualify, amend or modify in a manner adverse to Holdco, Parent or Merger Sub, or propose (publicly or otherwise)
to withhold, withdraw, qualify, amend or modify in a manner adverse to Holdco, Parent or Merger Sub, the Company Recommendation, (B) take any action or make any other public statement in connection with the Shareholders Meeting
inconsistent with the Company Recommendation, (C) if a tender offer or exchange offer that constitutes an Acquisition Proposal is commenced, fail to recommend against acceptance of such tender offer or exchange offer by its shareholders within
ten (10) Business Days after commencement (any of such actions described in the foregoing clauses (A), (B) or (C), a Change in the Company Recommendation) or (D) adopt, approve, endorse or recommend, or propose
(publicly or otherwise) to adopt, approve, endorse or recommend any Acquisition Proposal, provided that a stop, look and listen communication by the Company Board or the Special Committee pursuant to Rule 14d-9(f) of the Exchange
Act, or any substantially similar communication with respect to an Acquisition Proposal, which did not result from any breach of this Section 6.04 shall not be deemed to be a Change in the Company Recommendation, nor (ii) cause or permit
the Company or any of its Subsidiaries to enter into any Alternative Acquisition Agreement.
(d) Notwithstanding the
foregoing but subject to compliance by the Company and the Company Board with this Section 6.04, from the date of this Agreement and at any time prior to the receipt of the Requisite Company Vote, the Company Board (upon the unanimous
recommendation of the Special Committee) may (x) in response to an Intervening Event, effect a Change in the Company Recommendation and authorize the Company to terminate this Agreement or (y) if the Company has received an unsolicited,
bona fide written Acquisition Proposal and the Special Committee determines, in its good faith judgment, upon advice by a financial advisor who shall be an internationally recognized investment banking firm and outside legal counsel, that such
Acquisition Proposal constitutes a Superior Proposal, effect a Change in the Company Recommendation with respect to such Superior Proposal and authorize the Company to terminate this Agreement to enter into any letter of intent, Contract, commitment
or obligation with respect to such Superior Proposal, but only if:
(1) the Company shall have complied with its
obligations under this Section 6.04;
(2) (A) with respect to a Change in the Company Recommendation in response to an
Intervening Event, the Company Board (upon the unanimous recommendation of the Special Committee, after consultation with its financial advisor who shall be an internationally recognized investment banking firm and outside legal counsel) determines
in good faith that failure to do so would be inconsistent with its fiduciary duties under applicable Laws, or (B) with respect to a Change in the Company Recommendation or a termination of this Agreement to enter into an Alternative Acquisition
Agreement with respect to a bona fide written Acquisition Proposal that did not result from a breach of this Section 6.04, the Company Board (upon the unanimous recommendation of the Special Committee, after consultation with its
internationally recognized investment banking firm and outside legal counsel) determines in good faith that (x) failure to take such action would be inconsistent with its fiduciary duties under applicable Laws, (y) such Acquisition Proposal
constitutes a Superior Proposal;
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(3) prior to effecting a Change in the Company Recommendation in connection with,
or a termination of this Agreement as a result of, an Intervening Event in accordance with Section 6.04(d)(x), or a Change in the Company Recommendation in connection with, or a termination of this Agreement to enter into an Alternative Acquisition
Agreement with respect to, a bona fide written Acquisition Proposal in accordance with Section 6.04(d)(y), the Company shall have complied with the requirements of this Section 6.04 and shall (x) provide at least five (5) days prior
written notice to Parent (the Notice Period) advising Parent (A) of the specific material circumstances of such Intervening Event or (B) that the Company Board has received a Superior Proposal, specifying the material terms
and conditions of such Superior Proposal, providing a copy of any written documentation with respect to such Superior Proposal and identifying the person making such Superior Proposal and indicating that the Company Board intends to effect a Change
in the Company Recommendation and the manner in which it intends (or may intend) to do so, it being understood that such notice or any amendment or update thereto or the determination to so deliver such notice shall not constitute a Change in the
Company Recommendation, and (y) permit Parent and its Representatives to make a presentation to the Company Board and the Special Committee regarding this Agreement and any proposed modifications or adjustments with respect thereto (to the extent
Parent desires to make such presentation) and negotiate with and cause its financial and legal advisors to negotiate with Parent and its Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms
and conditions of this Agreement so that such Superior Proposal would cease to constitute a Superior Proposal or so that a failure to effect a Change in the Company Recommendation would no longer be inconsistent with the directors fiduciary
duties under applicable Law, as applicable, and consider in good faith any modifications or adjustments regarding this Agreement proposed by Parent; provided that any material modifications to such Acquisition Proposal that the Special
Committee previously determined to be a Superior Proposal shall be deemed a new Acquisition Proposal and the Company shall be required to again comply with the requirements of this Section 6.04(d); and
(4) following the end of the Notice Period (and any renewed period thereof), the Special Committee shall have unanimously
determined in good faith (after consultation with a financial advisor who shall be an internationally recognized investment banking firm and outside legal counsel, as applicable) after considering the terms of any modifications or adjustments to
this Agreement proposed by Parent, that (x) with respect to a Change in the Company Recommendation in accordance with Section 6.04(d)(x) or Section 6.04(d)(y), failure to effect a Change in the Company Recommendation would be inconsistent with
the directors fiduciary duties under applicable Laws, and shall have communicated its unanimous recommendation to the Company Board to effect a Change in the Company Recommendation with respect to such Intervening Event or such Superior
Proposal and (y) with respect to a Change in the Company Recommendation in connection with, or a termination of this Agreement to enter into an Alternative Acquisition with respect to a bona fide written Acquisition Proposal in accordance with
Section 6.04(d)(y), such Acquisition Proposal continues to constitute a Superior Proposal.
(e) Nothing contained in this
Section 6.04 shall be deemed to prohibit the Company or the Company Board (or the Special Committee) from complying with its disclosure obligations under applicable Laws, including U.S. federal Law, with regard to an Acquisition Proposal,
including taking and disclosing to its shareholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) under the Exchange Act (or any similar communication to shareholders); provided that any such disclosure (other than a statement that
the Company Board or the Special Committee has received and is currently evaluating such Acquisition Proposal and/or describing the operation of this Agreement with respect thereto, or a stop, look and listen communication or similar
communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) shall be deemed to be a Change in the Company Recommendation unless the Company Board expressly publicly reaffirms the Company Recommendation within two
(2) Business Days following any request by Parent.
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SECTION 6.05 Directors and Officers Indemnification and Insurance.
(a) The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable with respect to exculpation and indemnification than are set forth in the memorandum and articles of association of the Company
in effect as of the date hereof, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at
or prior to the Effective Time, were directors or officers of the Company, unless such modification shall be required by Law.
(b) The Surviving Company shall maintain in effect for six (6) years from the Effective Time, the current directors
and officers liability insurance policies maintained by the Company as of the date hereof with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the
consummation of the Transactions (the parties covered thereby, the Indemnified Parties); provided, however, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms
and conditions that are no less favorable, and provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual
premiums paid by the Company for such insurance. In addition, the Company may and, at Parents request, the Company shall, purchase a six (6)-year tail prepaid policy prior to the Effective Time on terms and conditions no less
advantageous to the Indemnified Parties than the existing directors and officers liability insurance maintained by the Company. If such tail prepaid policies have been obtained by the Company prior to the Effective Time, the
Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under
this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and
after the Effective Time, the Surviving Company shall comply with all of the Companys obligations, and shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to
advance funds for expenses) the present and former officers and directors thereof against any and all costs or expenses (including reasonable attorneys fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid
in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of, relating to or in connection with (i) the fact that such
person is or was a director or officer of the Company or such Subsidiary or (ii) any acts or omissions occurring or alleged to have occurred prior to or at the Effective Time, to the extent provided under the Companys or such
Subsidiaries respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by
the CICL or any other applicable Law, including the approval of this Agreement, the Merger or the other Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or
advancement right of any such person; provided that this Section 6.05(c) is not intended to confer any new or additional rights on any such person, and the indemnification and other obligations of the Company set forth above shall be
subject to any limitation imposed from time to time under applicable Law and the Companys and its Subsidiaries respective organizational and governing documents in effect as of the date hereof.
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(d) In the event the Surviving Company or any of its successors or assigns
(i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person,
then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Company or at Parents option, Parent, shall assume the obligations set forth in this Section 6.05.
(e) The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the
benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a third-party beneficiary of the provisions of this Section 6.05.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to
directors and officers insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that
the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies.
SECTION 6.06 Notification of Certain Matters. Each of the Company and Parent shall promptly notify the other in writing of:
(a) any notice or other communication from any person alleging that the consent of such person is or may be required in
connection with the Transactions;
(b) any notice or other communication from any Governmental Authority in connection with
the Transactions;
(c) any Actions commenced or, to the knowledge of the Company or the knowledge of Parent, threatened
against the Company or any of its Subsidiaries or Parent and any of its Subsidiaries, as the case may be, that, if pending on the date of this Agreement, would have been required to have been disclosed by such party pursuant to any of such
partys representations and warranties contained herein, or that relate to such partys ability to consummate the Transactions; and
(d) if a breach of any representation or warranty or failure to perform any covenant or agreement on the part of such party set
forth in this Agreement shall have occurred that would cause the conditions set forth in Sections 7.01, 7.02 and 7.03 not to be satisfied;
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together, in each case, with a copy of any such notice, communication or Action; provided, that the
delivery of any notice pursuant to this Section 6.06 shall not (A) cure any breach of, or non-compliance with, any other provision of this Agreement, or (B) limit or otherwise affect the remedies available hereunder to the party
receiving such notice; provided, further, that failure to give prompt notice pursuant to this Section 6.06 shall not constitute a failure of a condition set forth in Article VII except to the extent that the underlying fact or
circumstance, the occurrence or non-occurrence of the event, or failure to comply with or satisfy any covenant, condition or agreement not so notified would, standing alone, constitute such a failure.
SECTION 6.07 Further Action; Reasonable Best Efforts. (a) Upon the terms and subject to the conditions of this Agreement, each of the
parties hereto shall as promptly as practicable make its respective filings, and thereafter make any other required submissions, with respect to the Transactions with or to each Governmental Authority with jurisdiction over enforcement of the
antitrust or competition Laws, and coordinate and cooperate fully with the other parties in exchanging such information and providing such assistance as the other parties may reasonably request in connection therewith. In addition, each of the
parties hereto shall (i) notify the other parties as promptly as practicable of any communication (whether oral or written) it or any of its affiliates receives from any Governmental Authority in connection with the Transactions,
(ii) permit the other parties to review in advance, and consult with the other parties on (and obtain the prior written consent of Parent with respect to), any proposed filing, submission or communication (whether oral or written) by such party
with or to any Governmental Authority in connection with the Transactions, and (iii) to the extent permitted by such Governmental Authority, give the other parties the opportunity to attend and participate at (and obtain the prior written
consent of Parent with respect to agreeing to or scheduling) any meeting or conference with any Governmental Authority in connection with the Transactions.
(b) Each party hereto shall, upon request by any other party, furnish such other party with all information concerning itself,
its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement, the Schedule 13E-3, or any other statement, filing, notice or application made by or on
behalf of Holdco, Parent, Merger Sub, the Company or any of their respective affiliates to any Governmental Authority in connection with the Merger and the Transactions.
(c) Subject to the other provisions of this Section 6.07, each party hereto shall use its reasonable best efforts to do
and perform, or cause to be done and performed, all such further acts and things as may be necessary or desirable in order to consummate the Transactions, including, without limitation, employing such resources and taking all steps as are necessary
to obtain the Requisite Regulatory Approvals; provided, that none of the Company, Parent, Merger Sub or any of their respective affiliates shall be required to hold separate, restructure, reorganize, sell, divest, dispose of, or otherwise
take or commit to any action that limits its freedom of action with respect to, or its ability to retain, any of its businesses, services or assets. The parties agree to cooperate in good faith to determine and direct the strategy and process by
which the parties will seek the Requisite Regulatory Approvals. If, at any time after the Effective Time, any further action is necessary or desirable to carry out the purposes of this Agreement, the proper officers and directors of each party to
this Agreement shall use their reasonable best efforts to take all such action. Parent and the Merger Sub shall prepare and make all filings and submit all written materials, to the relevant PRC Governmental Entities, in each case, as promptly as
practicable after the date of this Agreement and as may be reasonably necessary, proper or advisable for the obtaining of each of the Parent Requisite Regulatory Approvals.
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SECTION 6.08 Participation in Litigation. Prior to the Effective Time, (a) each of
Parent and the Company shall give prompt notice to the other of any Actions by shareholders of the Company commenced or, to the knowledge of Parent or the Company, as the case may be, threatened, against the Company and/or its directors which relate
to this Agreement or the Transactions, and (b) the Company shall give Parent the opportunity to participate in and direct the defense or settlement of any such shareholder Action against the Company and/or its directors relating to this
Agreement or the Transactions, and, no such Action shall be settled or compromised, and the Company shall not take any action to adversely affect or prejudice any such Action, without Parents prior written consent.
SECTION 6.09 Resignations. To the extent requested by Parent in writing at least three (3) Business Days prior to Closing, on the
Closing Date, the Company shall use reasonable best efforts to cause to be delivered to Parent duly signed resignations, which shall include a waiver of any claims against the Group Companies in respect of such resignations, effective as of the
Effective Time, of the directors of any Group Company designated by Parent.
SECTION 6.10 Public Announcements. Except as may be
required by applicable Law, the press release announcing the execution of this Agreement shall be issued only in such form as shall be mutually agreed upon by the Company and Parent. Thereafter, Parent and the Company shall consult with each other
before issuing any press release, having any communication with the press (whether or not for attribution), making any other public statement or scheduling any press conference or conference call with investors or analysts with respect to this
Agreement or the Transactions and shall not, without the prior written consent of the other party (such consent to not be unreasonably withheld), issue any such press release, have any such communication, make any such other public statement or
schedule any such press conference or conference call prior to such consultation; provided, however, that, in the event a party is required by applicable Law to make any press release, communication, other public statement, press
conference or conference call, as the case may be, such party may do so without Parents (if the Company is the disclosing Party) or the Companys (if Parent or Merger Sub is the disclosing party) prior written consent provided such
party (i) individually notifies Parent (if the Company is the disclosing Party) or the Company (if Parent or Merger Sub is the disclosing party), in each case, in writing, of such press release, communication, other public statement, press
conference or conference call to the extent legally permissible, (ii) only discloses information in respect of this Agreement and the Transactions to the extent required by applicable Law, upon the advice of outside counsel, and
(iii) incorporates all reasonable comments of Parent (if the Company is the disclosing party) or the Company (if Parent or Merger Sub is the disclosing party), to the extent legally permissible. Notwithstanding the foregoing, the restrictions
set forth in this Section 6.10 shall not apply to any release or announcement with respect to a Change in the Company Recommendation made or proposed to be made by the Company pursuant to and in accordance with Section 6.04(d).
SECTION 6.11 Stock Exchange Delisting. Prior to the Effective Time, the Company shall cooperate with Parent and use reasonable best
efforts to take, or cause to be taken, all actions, and do or cause to be done all things, reasonably necessary, proper or advisable on its part under applicable Laws and rules and policies of NYSE to enable the delisting by the Surviving Company
from NYSE and the deregistration of the Ordinary Shares under the Exchange Act as promptly as practicable after the Effective Time.
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SECTION 6.12 Takeover Statutes. If any Takeover Statute is or may become applicable to any
of the Transactions, the parties shall use their respective reasonable best efforts (a) to take all action necessary so that no Takeover Statute is or becomes applicable to any of the Transactions and (b) if any such Takeover Statute is or
becomes applicable to any of the foregoing, to take all action necessary (including, in the case of the Company and the Company Board, grant all necessary approvals) so that the Transactions may be consummated as promptly as practicable on the terms
contemplated by this Agreement, including all actions to eliminate or lawfully minimize the effects of such Takeover Statute on the Merger and the other Transactions.
SECTION 6.13 SAFE Registration. The Company shall as soon as practicable after the date hereof, (a) assist in the preparation of
applications to SAFE by management members of the Company who are PRC residents for the registration of their respective holdings of Ordinary Shares (whether directly or indirectly) in accordance with the requirements of the SAFE Rules and
Regulations (or any successor PRC Law), including by promptly providing such management members with such information relating to any Group Company as is required for such application, and (b) cause its Onshore Subsidiaries (to the extent
applicable) to comply with the requirements of the SAFE Rules and Regulations (or any successor PRC Law), including without limitation the required filings with SAFE in respect of the termination of the Share Incentive Plan, as applicable, at the
Effective Time.
SECTION 6.14 Financing.
(a) Each of Holdco, Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all actions and
do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Financing on the terms and conditions described in the Financing Commitments, including by (i) maintaining in effect the Financing Commitments,
(ii) satisfying on a timely basis all conditions applicable to Holdco, Parent and Merger Sub in the Financing Commitments that are within their control, including without limitation paying when due all commitment fees and other fees arising
under the Financing Commitments as and when they become due and payable thereunder, and (iii) consummating the financing contemplated by the Financing Commitments at or prior to the Effective Time. If any portion of the Debt Financing becomes
unavailable on the terms and conditions contemplated by the Debt Commitment Letter, (x) Holdco, Parent and Merger Sub shall promptly notify the Company and (y) Holdco, Parent and Merger Sub shall use their reasonable best efforts to
arrange and obtain alternative financing from alternative sources in an amount sufficient to consummate the Transactions with terms and conditions that are not less favorable in any material respect (as determined by Parent) than the terms and
conditions set forth in the Debt Commitment Letter as promptly as practicable following the occurrence of such event (the Alternative Financing). If any Parent Party becomes aware of the existence of any fact or event that would
reasonably be expected to cause the Debt Financing to become unavailable on the terms and conditions contemplated by the Debt Commitment Letter, Holdco, Parent and Merger Sub shall use their reasonable best efforts to either cure or eliminate such
fact or event, or to arrange and obtain the Alternative Financing. The Parent Parties shall promptly provide a true and complete copy of each alternative financing agreement (together with a redacted copy of any related fee letter) to the Company.
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(b) None of Holdco, Parent nor Merger Sub shall amend, alter or waive, or agree
to amend, alter or waive, any term of the Financing Commitments without the prior written consent of the Company Board if such amendments, alterations or waivers would (i) reduce the aggregate amount of the Debt Financing, or (ii) impose
new or additional conditions that would reasonably be expected to prevent or materially delay the ability of Holdco, Parent or Merger Sub to consummate the Merger; provided, that notwithstanding any other provision of this Agreement, Holdco,
Parent and Merger Sub shall be entitled from time to time to (x) amend, restate, supplement, replace, substitute or otherwise modify, or waive any of its rights under, the Financing Commitments and/or replace or substitute other debt or equity
financing for all or any portion of the Financing from the same and/or alternative financing sources, subject to clauses (i) and (ii) above, and (y) amend, restate, supplement, replace, substitute or otherwise modify the Debt
Commitment Letter for the purposes of adding agents, co-agents, lenders, managers, co-managers, arrangers, bookrunners or other Persons that have not executed the Debt Commitment Letter as of the date hereof so long as such amendment, restatement,
supplement, replacement substitution or modification is otherwise in compliance with this Section 6.14(b). The Parent Parties shall promptly notify the Company of (i) the expiration or termination of any Financing Commitment, (ii) any
breach of any material provisions of any of the Financing Commitments by any party thereto or (iii) any refusal by the parties to the Financing Commitments to provide the full financing contemplated by the Financing Commitments.
(c) Holdco, Parent and Merger Sub acknowledge and agree that the obtaining of the Financing (including any Alternative
Financing) is not a condition to the Closing, and reaffirms its obligation to consummate the Merger and the other transactions contemplated hereby, irrespective and independent of the availability of the Financing, subject to the applicable
conditions set forth in Article VII and the requirements of Section 1.02.
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(d) Prior to the Effective Time, the Company agrees to use reasonable best
efforts to provide, and shall cause each Subsidiary of the Company and each of their respective officers, employees and representatives to use reasonable best efforts to provide, to Holdco, Parent and Merger Sub (at Parents sole cost and
expense), all reasonable cooperation as may be reasonably requested by the Parent Parties or their Representatives in connection with the Debt Financing and any Alternative Financing, including, without limitation, (i) participating in a
reasonable number of meetings, presentations, due diligence sessions, road shows, sessions with rating agencies and other meetings, including arranging for reasonable direct contact between senior management, representatives and advisors of the
Company with representatives of the Parent Parties and their Debt Financing and/or Alternative Financing sources, (ii) assisting in the preparation of offering memoranda, private placement memoranda, bank information memoranda (including a
public side version which does not contain non-publicly available information), prospectuses, rating agency presentations and similar documents reasonably requested by the Parent Parties or their Representatives in connection with the Debt Financing
and/or Alternative Financing (including using reasonable best efforts to obtain consents of accountants for use of their reports in any materials relating to the Debt Financing and/or Alternative Financing and delivery of one or more customary
representation letters), (iii) promptly furnishing the Parent Parties and their Debt Financing and/or Alternative Financing sources with financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably
requested by the Parent Parties and their Debt Financing and/or Alternative Financing sources, including, without limitation, all financial statements and financial and non-financial information regarding the Company and its Subsidiaries as may be
reasonably requested by the Parent Parties and of the type and form customary for the placement, arrangement and/or syndication of loans or distribution of debt contemplated by (or otherwise required as a condition to funding under) the Debt
Commitment Letter (the information required to be delivered in this clause (iii), the Required Information), (iv) cooperating with advisors, consultants and accountants of the Parent Parties or their Debt Financing sources
with respect to the conduct of any examination, appraisal or review of the financial condition or any of the assets or liabilities of the Company or any Subsidiary of the Company, including for the purpose of establishing collateral eligibility and
values, (v) using reasonable best efforts to obtain accountants comfort letters and legal opinions as may be reasonably requested by the Parent Parties, (vi) executing and delivering any pledge and security documents, commitment
letters, underwriting or placement agreements or other definitive financing documents conditioned upon Closing, or other ancillary documentation including certificates, legal opinions or documents as may be reasonably requested by the Parent Parties
or their Representatives (including a certificate of the chief financial officer of the Company or any borrower Subsidiary of the Company with respect to solvency matters) or otherwise facilitate the pledging of collateral, the delivery of pay-off
letters and other cooperation in connection with the pay-off of existing Indebtedness and release of all related Liens, (vii) taking all actions reasonably necessary to (A) permit the prospective lenders involved in the Debt Financing
and/or any Alternative Financing to evaluate the Companys current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and (B) establishing bank
and other accounts (including escrow accounts), blocked account agreements and lock box arrangements in connection with the foregoing, provided that such accounts, agreements and arrangements shall not become active or take effect until the
Effective Time, (viii) entering into one or more credit or other agreements on terms satisfactory to the Parent Parties in connection with the Debt Financing and/or any Alternative Financing immediately prior to the Effective Time,
provided that such agreements and arrangements shall not become active or take effect until the Effective Time, (ix) furnishing Holdco, Parent, Merger Sub and its Representatives promptly with all documentation and other information
required with respect to the Debt Financing and/or any Alternative Financing under applicable know your customer and anti-money laundering rules and regulations and (x) furnishing Holdco, Parent, Merger Sub and its Representatives
promptly upon its request with a list of contractual arrangements existing as of a date specified by Holdco, Parent, Merger Sub or its Representative pursuant to which the Company has an obligation to sell, lease, license, surrender, transfer, lend
or otherwise dispose of such assets, in reasonable details and furnishing Holdco, Parent, Merger Sub and its Representatives such supporting documents requested thereby.
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(e) The Company will take all corporate actions reasonably necessary to permit
the consummation of the Debt Financing and/or any Alternative Financing, including without limitations the execution and delivery of any other certificates, instruments or documents, and to permit the proceeds thereof, together with cash at the
Company and its Subsidiaries, to be made available to the Company on the Closing Date to consummate the Merger. The Company shall promptly notify Parent if any information furnished by the Company or any of its Subsidiaries pursuant to this
Section 6.14(c) is or becomes inaccurate, incomplete or misleading in any material respect. Neither the Company nor any of its Subsidiaries shall be required to pay any commitment fee or similar fee or incur any liability with respect to the
Debt Financing or any Alternative Financing prior to the Closing. The Company hereby consents to the use of its and its Subsidiaries logos in connection with the Debt Financing and/or any Alternative Financing. Parent shall, promptly upon
request by the Company, reimburse (or cause the applicable borrowers to reimburse) the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys fees) incurred by the Company or any of its
Subsidiaries in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.14(d) and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against
any and all liabilities or losses suffered or incurred by any of them in connection with the arrangement of the Debt Financing or Alternative Financing and any information used in connection therewith (except with respect to any information provided
by or on behalf of the Company or any of its Subsidiaries), except in the event such liabilities or losses arose out of or result from the willful misconduct of the Company, its Subsidiaries or any of their respective Representatives.
(f) Nothing in this Section 6.14 or any other provision of this Agreement shall require, and in no event shall the
reasonable best efforts of Holdco, Parent or Merger Sub be deemed or construed to require, Holdco, Parent or Merger Sub to (i) seek the Equity Financing from a source other than the Sponsors or in any amount in excess of that
contemplated by the Equity Commitment Letter, (ii) waive any term or condition of this Agreement, or (iii) commence any legal action or proceeding against any financing source.
ARTICLE VII
CONDITIONS
TO THE MERGER
SECTION 7.01 Conditions to the Obligations of Each Party. The obligations of the Company, Holdco, Parent
and Merger Sub to consummate the Merger are subject to the satisfaction or waiver (where permissible) of the following conditions:
(a) Shareholder Approval. The Requisite Company Vote shall have been obtained in accordance with the CICL and the
Companys memorandum and articles of association.
(b) No Injunction. No Governmental Authority of competent
jurisdiction shall have issued any injunction, restraining order or judgment which is then in effect that prohibits the consummation of the Transactions.
(c) Regulatory Approvals. (i) All Requisite Regulatory Approvals shall have been obtained and be in full force and
effect; and (ii) all other regulatory approvals shall have been obtained and be in full force and effect, except where the failure to obtain such other regulatory approvals would not, individually or in the aggregate, (A) have a Company
Material Adverse Effect or (B) prevent the consummation of any of the Transactions.
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SECTION 7.02 Conditions to the Obligations of Holdco, Parent and Merger Sub. The
obligations of Holdco, Parent and Merger Sub to consummate the Merger are subject to the satisfaction or waiver (where permissible) of the following additional conditions:
(a) Representations and Warranties. (i) Other than the representations and warranties of the Company contained in
Sections 3.03(a) (Capitalization), 3.04 (Authority Relative to this Agreement; Fairness), 3.05(a)(i) (No Conflict; Required Filings and Consents) and 3.21 (Brokers), the representations and warranties of the Company
contained in this Agreement (disregarding for this purpose any limitation or qualification by materiality or Company Material Adverse Effect or any words of similar import set forth therein) shall be true and correct in all
respects as of the date hereof and as of the Closing, as though made on and as of such date and time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except to the extent such failures to be true
and correct, would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; and (ii) the representations and warranties set forth in Sections 3.03(a), 3.04, 3.05(a)(i) and 3.21 shall be true and
correct in all respects as of the date hereof and as of the Closing, as though made on and as of such date and time (except to the extent expressly made as of an earlier date, in which case as of such earlier date).
(b) Agreements and Covenants. The Company shall have performed or complied in all material respects with all agreements
and covenants required by this Agreement to be performed or complied with by it on or prior to the Closing.
(c) Officer
Certificate. The Company shall have delivered to Parent a certificate, dated the Closing Date, signed by a senior executive officer of the Company, certifying as to the satisfaction of the conditions specified in Sections 7.02(a), 7.02(b) and
7.02(d).
(d) Material Adverse Effect. Since the date of this Agreement, there shall not have occurred and be
continuing a Company Material Adverse Effect.
(e) Dissenting Shareholders. The holders of no more than fifteen
percent (15%) of the Ordinary Shares shall have validly served a notice of dissent under Section 238(2) of the CICL.
SECTION
7.03 Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger are subject to the satisfaction or waiver (where permissible) of the following additional conditions:
(a) Representations and Warranties. The representations and warranties of Holdco, Parent and Merger Sub contained in
this Agreement (disregarding for this purpose any limitation or qualification by materiality) shall be true and correct in all material respects as of the date hereof and as of the Closing, as though made on and as of such date and time
(except to the extent expressly made as of an earlier date, in which case as of such earlier date), except to the extent such failures to be true and correct, would not, individually or in the aggregate, reasonably be expected to prevent the
consummation of any of the Transactions.
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(b) Agreements and Covenants. Holdco, Parent and Merger Sub shall have
performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it on or prior to the Closing.
(c) Officer Certificate. Holdco, Parent and Merger Sub shall have delivered to the Company a certificate, dated the Closing Date,
signed by an executive officer of each of Holdco, Parent and Merger Sub, certifying as to the satisfaction of the conditions specified in Sections 7.03(a) and 7.03(b).
SECTION 7.04 Frustration of Closing Conditions. Prior to the Termination Date, none of the Company, Holdco, Parent or Merger Sub
may rely on the failure of any condition set forth in Article VII to be satisfied if such failure was caused by such partys failure to act in good faith to comply with this Agreement and consummate the Transactions.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.01 Termination. This Agreement may be terminated and the Merger and the other Transactions may be abandoned at any time
prior to the Effective Time (provided that, in the case of the Company, any such action must be authorized by a unanimous recommendation of the Special Committee), as follows:
(a) by mutual written consent of Parent and the Company;
(b) by either Parent or the Company, if:
(i) the Effective Time shall not have occurred on or before February 2, 2017 (such date as may be extended in accordance with
this Section 8.01(b)(i), the Termination Date), provided that the right to terminate this Agreement pursuant to this Section 8.01(b)(i) shall not be available to any party if the circumstances described in this
Section 8.01(b)(i) are primarily caused by such partys failure to comply with its obligations under this Agreement;
(ii) an Injunction shall have been issued; provided that the right to terminate this Agreement pursuant to this
Section 8.01(b)(ii) shall not be available to any party if the circumstances described in this Section 8.01(b)(ii) were primarily caused by such partys failure to comply with its obligations under this Agreement; or
(iii) if the Requisite Company Vote is not obtained at the Shareholders Meeting or any adjournment thereof at which this
Agreement has been voted upon;
(c) by the Company:
(i) if there shall have been a breach of any representation, warranty, covenant or agreement on the part of Holdco, Parent and
Merger Sub set forth in this Agreement, or if any representation or warranty of Holdco, Parent and Merger Sub shall have become untrue, in either case such that the conditions set forth in Section 7.03(a) or Section 7.03(b) would not be
satisfied; provided, however, that, the Company shall not have the right to terminate this Agreement pursuant to this Section 8.01(c) if the Company is then in material breach of any of its representations, warranties, covenants
or other agreements hereunder;
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(ii) if (A) all conditions to closing contained in Section 7.01 and
Section 7.02 have been satisfied (other than those conditions that by their nature are to be satisfied at Closing, but subject to their satisfaction or waiver by the party having the benefit thereof) and Parent and Merger Sub have not received
the proceeds of the Debt Financing, the Equity Financing or the Alternative Financing, as the case may be (other than as a result of the failure of the Company to timely satisfy its obligations under Section 6.14 on or prior to the Closing
Date) and fail to complete the Closing by the date on which the Closing should have occurred pursuant to Section 1.02, and (B) the Company has irrevocably confirmed by written notice to Parent that (x) all conditions set forth in
Section 7.03 have been satisfied (other than those conditions that by their nature are to be satisfied at Closing, but subject to their satisfaction or waiver by the party having the benefit thereof) or that the Company is willing to waive any
unsatisfied conditions in Section 7.03 and (y) the Company stands ready, willing and able to consummate the Transactions; or
(iii) prior to obtaining the Requisite Company Vote, if (A) the Company Board, acting upon the unanimous recommendation of
the Special Committee, has authorized the Company to enter into a definitive acquisition agreement with respect to such Superior Proposal and terminate this Agreement pursuant to and in accordance with Section 6.04(d), (B) immediately
prior to, concurrently with or immediately following such termination of this Agreement, the Company enters into such definitive acquisition agreement with respect to such Superior Proposal and (C) immediately prior to or concurrently with such
termination of this Agreement, the Company pays to Parent the Company Termination Fee required pursuant to Section 8.03(a); provided that the Company shall not be permitted to terminate this Agreement pursuant to this Section unless the
Company has complied with Section 6.04;
(iv) prior to obtaining the Requisite Company Vote, if (A) the Company Board,
acting upon the unanimous recommendation of the Special Committee, has authorized the Company to terminate this Agreement as a result of an Intervening Event pursuant to and in accordance with Section 6.04(d) and (B) immediately prior to or
concurrently with such termination of this Agreement, the Company pays to Parent the Company Termination Fee required pursuant to Section 8.03(a); provided that the Company shall not be permitted to terminate this Agreement pursuant to this Section
unless the Company has complied with Section 6.04; or
(d) by Parent:
(i) if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company set
forth in this Agreement, or if any representation or warranty of the Company shall have become untrue, in either case such that the conditions set forth in Section 7.02(a) or Section 7.02(b) would not be satisfied; provided,
however, that, Parent shall not have the right to terminate this Agreement pursuant to this Section 8.01(d)(i) if any of Holdco, Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or
other agreements hereunder; or
(ii) if (A) there shall have been a Change in the Company Recommendation, (B) the
Company Board shall have adopted, approved, endorsed or recommended, or shall have proposed publicly to adopt, approve, endorse or recommend, an Acquisition Proposal, (C) the Company or any of its Subsidiaries shall have consummated any
Acquisition Proposal or entered into any Alternative Acquisition Agreement, (D) the Company shall have failed to include the Company Recommendation in the Proxy Statement, or (E) a tender offer or exchange offer by a Third Party for any
Ordinary Shares representing ten percent (10%) or more of the outstanding Ordinary Shares is commenced, and the Company Board fails to recommend against acceptance of such tender offer or exchange offer by its shareholders (including by taking
no position with respect to the acceptance of such tender offer or exchange offer by its shareholders) within ten (10) Business Days after the public announcement of such tender offer or exchange offer.
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SECTION 8.02 Effect of Termination. In the event of the termination of this Agreement
pursuant to Section 8.01, this Agreement shall forthwith become void, and there shall be no liability under this Agreement on the part of any party hereto (or any Representatives of any party hereto); provided, however,
that the terms of Section 6.10, this Article VIII and Article IX shall survive any termination of this Agreement.
SECTION
8.03 Fees and Expenses. Except as expressly provided in this Section 8.03, all Expenses incurred in connection with this Agreement and the Transactions shall be paid by the party incurring such expenses, whether or not the
Transactions are consummated. Expenses, as used in this Agreement, shall include all reasonable out-of-pocket expenses (including, without limitation,
all fees and expenses of counsel, accountants, investment bankers, experts, financing sources and consultants to a party hereto and its affiliates) incurred by a party or on its behalf in connection with or related to the authorization, preparation,
negotiation, execution and performance of this Agreement, the preparation, printing and filing of the Proxy Statement and the Schedule 13E-3 and the mailing or other dissemination of the Proxy Statement, the solicitation of shareholder approvals,
the filing of any required notices under applicable Law and all other matters related to the consummation of the Transactions.
(a) Company Termination Fee. The Company agrees that:
(i) if the Company shall terminate this Agreement pursuant to Section 8.01(c)(iii) or Section 8.01(c)(iv); or
(ii) if Parent shall terminate this Agreement pursuant to Section 8.01(d)(i) or Section 8.01(d)(ii); or
(iii) if (A) either Parent or the Company shall terminate this Agreement pursuant to Section 8.01(b)(i) or
Section 8.01(b)(iii), (B) at or prior to the time of termination of this Agreement, a Third Party shall have publicly disclosed or communicated to the Company Board or Special Committee an Acquisition Proposal, and (C) at any time
prior to the date that is twelve (12) months after the date of such termination, the Company consummates or enters into a definitive agreement with respect to an Acquisition Proposal; provided, that for purposes of this
Section 8.03(a)(ii), all references to ten percent (10%) in the definition of Acquisition Proposal shall be deemed to be references to more than fifty percent (50%);
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then the Company shall pay or cause to be paid to Parent a fee of US$6,000,000 (six million United States
dollars) (the Company Termination Fee), by wire transfer of same day funds to one or more accounts designated in writing by Parent, (A) in the case of clause (i) above, prior to or concurrently with, and as a condition
to the effectiveness of, such termination, (B) in the case of clause (ii) above, within two (2) Business Days after such termination and (C) in the case of clause (iii) above, within two (2) Business Days after the
earlier of the date on which the Company consummates or enters into a definitive agreement with respect to any Acquisition Proposal (whether or not the same as of the Acquisition Proposal which was previously disclosed or communicated prior to
termination of this Agreement).
(b) Notwithstanding anything herein to the contrary, in the event that this Agreement is
terminated by the Company pursuant to Section 8.01(c)(iii) in connection with an Acquisition Proposal that is received by the Company or otherwise made to the Companys shareholders within 30 days of the date of this Agreement, then the
Company Termination Fee shall mean a fee in the amount of US$3,750,000 (three million seven hundred and fifty thousand United States dollars).
(c) Parent Termination Fee. In the event that this Agreement is validly terminated (i) (A) by the Company or by
Parent in accordance with Section 8.01(b)(i), (B) the Company has not breached in any material respect any of its covenants or other agreements hereunder such that the condition to Closing set forth in Section 7.01(c) would not be
satisfied, and (C) all conditions to Closing (other than the condition to Closing set forth in Section 7.01(c) and other than those that by their terms are to be satisfied at the Closing) have been satisfied or waived except for the
condition set forth in Section 7.01(c), or (ii) (A) by the Company or by Parent in accordance with Section 8.01(b)(ii), (B) the Company has not breached in any material respect any of its covenants or other agreements hereunder
such that the closing condition set forth in Section 7.01(b) would not be satisfied, and (C) all conditions to Closing (other than the condition to Closing set forth in Section 7.01(b) and other than those that by their terms are to
be satisfied at the Closing) have been satisfied or waived , or (iii) if the Company validly terminates this Agreement pursuant to Section 8.01(c)(i) or Section 8.01(c)(ii); then Parent shall pay or cause to be paid to the
Company promptly (but in any event no later than five (5) Business Days after the date of such termination) a fee of US$12,000,000 (twelve million United States dollars) (the Parent Termination Fee), by wire transfer of same
day funds to one or more accounts designated in writing by the Company. In addition, in the event that (x) this Agreement is validly terminated by either the Company or Parent in accordance with 8.01(b)(i), (y) the condition set forth in
Section 7.02(e) has not been satisfied or waived by Parent on or prior to the Termination Date and (z) all other conditions to Closing (other than those that by their terms are to be satisfied at the Closing) have been satisfied or waived,
Parent will pay, or cause to be paid, to the Company an amount equal to 33.3% of the Parent Termination Fee, such payment to be made promptly (but in any event no later than five (5) Business Days) following such termination.
(d) In the event that the Company shall fail to pay the Company Termination Fee, or Parent shall fail to pay the Parent
Termination Fee, when due and in accordance with the requirements of this Agreement, the Company or Parent, as the case may be, shall reimburse the other party for all costs and expenses actually incurred or accrued by the other party (including,
without limitation, fees and expenses of counsel) in connection with the collection under and enforcement of this Section 8.03, together with interest on such unpaid Company Termination Fee or Parent Termination Fee, as the case may be,
commencing on the date that the Company Termination Fee or Parent Termination Fee, as the case may be, became due, at the prime rate established by the Wall Street Journal Table of Money Rates on such date plus 2%. Such collection expenses shall not
otherwise diminish in any way the payment obligations hereunder.
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(e) Each party acknowledges that (i) the agreements contained in this
Section 8.03 are an integral part of the Transactions, (ii) the damages resulting from termination of this Agreement under circumstances where a Company Termination Fee or Parent Termination Fee is payable are uncertain and incapable of
accurate calculation and therefore, the amounts payable pursuant to Section 8.03(a) or Section 8.03(b) are not a penalty but rather constitute amounts akin to liquidated damages in a reasonable amount that will compensate Parent or the
Company, as the case may be, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions, and (iii) without
the agreements contained in this Section 8.03, the parties hereto would not have entered into this Agreement.
SECTION
8.04 Limitations on Liabilities. (a) In no event shall any party or any of such partys affiliates be entitled to seek the remedy of specific performance of this Agreement other than as set forth in Section 9.07. For the
avoidance of doubt, while the Company or Parent may pursue both a grant of specific performance as permitted by Section 9.07 and the payment of the Parent Termination Fee pursuant to Section 8.03(c) and the guarantee of such obligations
pursuant to the Limited Guarantees (subject to their terms, conditions and limitations) or the Company Termination Fee pursuant to Section 8.03(a), as applicable, any amounts pursuant to Section 8.03(d) (if any), under no circumstances
shall the Company or Parent be permitted or entitled to receive both such grant of specific performance and the payment of the Parent Termination Fee, in the case of the Company, or the Company Termination Fee, in the case of Parent. If Parent pays
the Parent Termination Fee pursuant to Section 8.03(c), then such payment shall be the sole and exclusive remedy of the Company, its Subsidiaries, its direct and indirect holders of any equity, partnership or limited liability company interest,
controlling persons, directors, officers, employees, agents, attorneys, affiliates, members, managers, partners, assignees or successors (collectively, the Company Related Parties) against (i) Holdco, Parent, Merger Sub and
the Guarantors, (ii) any of their respective former, current or future holders of any equity, partnership or limited liability company interest in, controlling persons, directors, officers, employees, agents, attorneys, affiliates, members,
managers, partners, shareholder assignees or successors, (iii) any lender or prospective lender, lead arranger, arranger, agent or representative of or to Holdco, Parent or Merger Sub, or (iv) any holders or future holders of any equity,
share, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, affiliates, members, managers, partners, stockholders, assignees or successors of any of the foregoing (all persons
described in (i) to (iv), collectively, the Parent Related Parties) and none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions,
including the failure of the Merger to be consummated or for a breach or failure to perform hereunder (whether intentionally, unintentionally, knowingly, willfully or otherwise) or otherwise. For the avoidance of doubt, none of Holdco, Parent,
Merger Sub or any Parent Related Party shall have any liability for monetary damages of any kind or nature or arising in any circumstance in connection with this Agreement or any of the Transactions (including the Equity Commitment Letters) other
than the payment of the Parent Termination Fee pursuant to Section 8.03(c), and any amounts pursuant to Section 8.03(d) (if any), and in no event shall any of the Company, its Subsidiaries, or any other Company Related Party seek, or
permit to be sought, on behalf of any Company Related Party, any monetary damages from any Parent Related Party in connection with this Agreement or any of the Transactions (including the Equity Commitment Letters), other than from Parent to the
extent provided in Section 8.03(c), and any amounts pursuant to Section 8.03(d) (if any), or the Guarantors to the extent provided in the relevant Limited Guarantees, in each case without duplication. In no event shall any of the Company,
the Subsidiaries or any Company Related Party be entitled to seek the remedy of specific performance of this Agreement other than as set forth in Section 9.07.
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(b) Notwithstanding anything to the contrary in this Agreement, if the Company pays the Company
Termination Fee pursuant to Section 8.03(a), then any such payment shall be the sole and exclusive remedy of the Parent Related Parties against the Company Related Parties and none of the members of Company Related Parties shall have any
further liability or obligation relating to or arising out of this Agreement, the transactions contemplated hereby or the failure of the Merger to be consummated. Parent agrees to cause any Action (whether such Action is being prosecuted by Parent
or any other member of the Parent Related Parties) pending against the Company or any member of the Company Related Parties to be dismissed with prejudice at such time as, in connection with this Agreement or any of the transactions contemplated
hereby, the Company pays the Company Termination Fee pursuant to Section 8.03(a). The provisions of this Section 8.04(b) are intended to be for the benefit of, and shall be enforceable by, each member of the Company Related Parties.
SECTION 8.05 Amendment. This Agreement may be amended by the parties hereto by action taken by Parent and the Company in writing
(provided that, in the case of the Company, such action must be taken or authorized by the unanimous approval of the Special Committee) at any time prior to the Effective Time; provided, however, that, after the approval of this
Agreement and the Transactions by the shareholders of the Company, no amendment may be made that would reduce the amount or change the type of consideration into which each Ordinary Share (including Ordinary Shares represented by ADSs) shall be
converted upon consummation of the Merger.
SECTION 8.06 Waiver. At any time prior to the Effective Time, any party hereto may
(a) extend the time for the performance of any obligation or other act of any other party hereto, (b) waive any inaccuracy in the representations and warranties of any other party contained herein or in any document delivered pursuant
hereto and (c) waive compliance with any agreement of any other party or any condition to its own obligations contained herein. Any such extension or waiver shall be valid if set forth in an instrument in writing signed by the party or parties
to be bound thereby. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
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ARTICLE IX
GENERAL PROVISIONS
SECTION 9.01 Non-Survival of Representations, Warranties and Agreements. The
representations, warranties and agreements in this Agreement and in any certificate delivered pursuant hereto shall terminate at the Effective Time, except that the agreements set forth in Articles I and II, Section 6.05, Section 6.10 and
this Article IX shall survive the Effective Time.
SECTION 9.02 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, by telecopy or by registered or certified mail (postage prepaid, return receipt requested) to the
respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 9.02):
if to Holdco, Parent or Merger Sub, to:
Unit 201, 2/F, Malaysia Building
50 Gloucester Road
Wanchai
Hong Kong
|
|
|
Attention: |
|
Ms. Nana Wong |
Facsimile: |
|
+ (852) 2866-7997 |
Email: |
|
sec@twhchiucpa.com |
with a copy to (which shall not constitute notice):
Simpson Thacher & Bartlett
35/F ICBC Tower
3 Garden Road
Central, Hong Kong
|
|
|
Attention: |
|
Leiming Chen, Esq. |
Facsimile: |
|
+ (852) 2869-7694 |
Email: |
|
lchen@stblaw.com |
if to the Company:
China Ming Yang Wind Power Group Limited
Ming Yang Industrial Park
22
Torch Road
Torch Development Zone
Zhongshan, Guangdong, China 528437
Attention: Ricky Ng
Facsimile:
+86 760 28138698
email: ricky.ng@mywind.com.cn
with a copy to (which shall not constitute notice):
Skadden, Arps, Slate, Meagher & Flom LLP
30th Floor, China World Office 2
1 Jianguomenwai Avenue
Beijing
100004, PRC
Attention: Peter X. Huang, Esq.
Facsimile: +86 10 6535 5577
e-mail: peter.huang@skadden.com
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SECTION 9.03 Certain Definitions and Interpretations. (a) For purposes of this
Agreement:
Acquisition Proposal means any proposal or offer relating to any of the following (other than the
Transactions): (i) any merger, reorganization, consolidation, share exchange, business combination, scheme of arrangement, amalgamation, recapitalization, liquidation, dissolution, joint venture or other similar transaction involving the
Company or any of its Subsidiaries whose assets, individually or in the aggregate, constitute ten percent (10%) or more of the consolidated assets of the Company or to which ten percent (10%) or more of the total revenue or net income of
the Company are attributable, (ii) any sale, lease, license, exchange, transfer or other disposition of assets which would result in a Third Party acquiring assets, individually or in the aggregate, constituting ten percent (10%) or more
of the consolidated assets of the Company and its Subsidiaries or to which ten percent (10%) or more of the total revenue or net income of the Company and its Subsidiaries are attributable, (iii) any sale, exchange, transfer or other
disposition of ten percent (10%) or more of any class of equity securities of the Company to any Third Party, (iv) any general offer, tender offer or exchange offer that, if consummated, would result in any Third Party beneficially owning
ten percent (10%) or more of any class of equity securities of the Company, (v) any public solicitation of proxies in opposition to approval and adoption of this Agreement and approval of the Merger by the Companys shareholders or
(vi) any other transaction proposed in writing to the Special Committee by any Third Party the consummation of which may prevent, impede or materially delay the Transactions.
affiliate of a specified person means a person who, directly or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, such specified person. For the avoidance of doubt, prior to the Closing, the Company and its Subsidiaries, officers and directors are not affiliates of Holdco, Parent, Merger Sub or the Sponsors.
Agreement has the meaning set forth in the Preamble, which shall, for the avoidance of doubt, include all annexes and
schedules hereto.
Alternative Acquisition Agreement means a letter of intent, agreement in principle, term sheet,
merger agreement, acquisition agreement, option agreement or other contract, commitment or obligation relating to any Acquisition Proposal (other than a confidentiality agreement entered into in compliance with Section 6.04(b)).
Applicable Anti-Bribery Law means any anti-bribery or anti-corruption laws, including the U.S. Foreign Corrupt Practices
Act of 1977, as amended, the PRC Law Criminal Law, the PRC Law on Anti-Unfair Competition adopted on September 2, 1993, the Interim Rules on Prevention of Commercial Bribery issued by the PRC State Administration of Industry and Commerce on
November 15, 1996, if applicable, and all other anti-bribery and anticorruption laws to which a Group Company is subject.
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beneficial owner, beneficially owned or
beneficially owning, with respect to any Ordinary Shares, has the meaning ascribed to such term under Rule 13d-3(a) of the Exchange Act.
Business Day means any day on which the principal offices of the SEC in Washington, D.C. are open to accept filings, or, in
the case of determining a date when any payment is due, any day on which banks are not required or authorized to close in the City of New York, the PRC or Hong Kong.
Buyer Group Contract means each of this Agreement, the Rollover Agreement, the Support Agreements, the Equity Commitment
Letters, the Limited Guarantees and the Consortium Agreement.
Chairman Parties means Mr. Chuanwei Zhang (the
Chairman), Ms. Ling, Wu (Ms. Wu), First Windy Investment Corp., a British Virgin Islands company controlled by the Chairman, and Rich Wind Energy Three Corp., a British Virgin Islands company controlled by
Ms. Wu.
Company Employee Plan means any written plan, program, policy, Contract or other arrangement providing
for compensation, severance, termination pay, deferred compensation, performance awards, share or share-related awards, housing funds, insurance arrangements, fringe benefits, perquisites, superannuation funds, retirement benefits, pension schemes
or other employee benefits, that is or has been maintained, contributed to or required to be contributed to by the Company or any of its Subsidiaries for the benefit of any current or former employee, director, officer or independent contractor of
the Company or its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has or may have any liability or obligation.
Company Material Adverse Effect means any event, circumstance, change or effect that, individually or in the aggregate with
all other events, circumstances, changes and effects, is or would reasonably be expected to (a) be materially adverse to the business, condition (financial or otherwise), assets, properties, liabilities or results of operations of the Group
Companies, taken as a whole, or (b) prevent or materially delay the consummation of the Transactions; provided, however, that in no event shall any of the following be taken into account in determining whether there has been a
Company Material Adverse Effect under clause (a): (A) changes after the date hereof affecting general economic conditions in the PRC or the United States; (B) changes in IFRS or applicable Laws after the date hereof;
(C) changes after the date hereof generally affecting the industry in which the Company and its Subsidiaries operate; (D) changes after the date hereof affecting the financial, credit or securities markets in which the Company or any of
its Subsidiaries operates, including changes in interest rates or foreign exchange rates; (E) effects resulting from the public announcement of the Transactions (other than for purposes of any representation or warranty contained in
Section 3.05) or (F) natural disasters, declarations of war, acts of sabotage or terrorism or armed hostilities, in each case occurring after the date hereof; provided, further that events, circumstances, changes or effects
set forth in clauses (A), (B), (C), (D) and (F) above shall be taken into account in determining whether a Company Material Adverse Effect has occurred or reasonably would be expected to occur if and to the extent any such
events, circumstances, changes or effects, individually or in the aggregate, have a disproportionate impact on any of the Group Companies relative to the other participants in the industry or geographic markets in which the Company and its
Subsidiaries conduct their businesses.
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Company Option means each outstanding option award issued by the Company
pursuant to any Share Incentive Plan that entitles the holder thereof to purchase one (1) Ordinary Share upon the vesting of such award.
Company Restricted Share Award means each outstanding restricted share unit issued by the Company pursuant to the Share
Incentive Plan that entitles the holder thereof to be issued one (1) Ordinary Share upon the vesting of such award.
Company
Share Award means each Company Option and each Company Restricted Share Award.
Confidentiality Agreements
means the confidentiality agreement, dated as of January 11, 2016, between the Company and each of the Chairman Parties, the confidentiality agreement, dated as of December 15, 2015, between the Company and Guangzhou Huifu Kaile Investment (L.P.)
and the confidentiality agreement, dated as of December 28, 2015, between the Company and Shanghai Dajun Guangcheng Capital Fund.
Contract means any note, bond, mortgage, indenture, deed of trust, contract, agreement, lease, license, permit, franchise
or other instrument.
control (including the terms controlled by and under common control
with) means the possession, directly or indirectly, or as trustee or executor, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities or the possession
of voting power, as trustee or executor, by contract (including, without limitation, contractual arrangements similar to those provided by the Control Agreements) or credit arrangement or otherwise.
Environmental Law means any applicable local, provincial or national Laws relating to (a) the protection of health,
safety or the environment or (b) the handling, use, transportation, disposal, release or threatened release of any Hazardous Substance.
Exercise Price means, with respect to any Company Option, the exercise price per Ordinary Share underlying such Company
Option.
Governmental Authority means any nation or government, any agency, self-regulatory body, public, regulatory or
taxing authority, instrumentality, department, commission, court, arbitrator, ministry, tribunal or board of any nation or government or political subdivision thereof, in each case, whether foreign or domestic and whether national, supranational,
federal, provincial, state, regional, local or municipal.
Governmental Entity means (i) any national, federal,
state, local or foreign government or any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, (ii) any public international organization, (iii) any agency, division,
bureau, department or other sector of any government, entity or organization described in the foregoing clauses (i) or (ii) of this definition, or (iii) any company, business, enterprise or other entity owned or controlled by any
government, entity, organization described in the foregoing clauses (i), (ii) or (iii) of this definition.
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Governmental Official means any employee, agent, or instrumentality of any
government, including departments or agencies of a government and businesses that are wholly or partially government-owned, and any employees of such businesses; departments or agencies of public international organizations; and individuals who
are members of political parties or hold positions in political parties, as well as candidates for political office.
Group
Company means any of the Company and its Subsidiaries.
Hazardous Substance means any chemical, pollutant,
waste or substance that is (a) listed, classified or regulated under any Environmental Law as hazardous substance, toxic substance, pollutant, contaminant or oil or (b) any petroleum product or by product, asbestos containing material,
polychlorinated biphenyls or radioactive material.
Indebtedness means, with respect to any person, (a) all
indebtedness of such person, whether or not contingent, for borrowed money, (b) all obligations of such person for the deferred purchase price of property or services, (c) all obligations of such person evidenced by notes, bonds,
debentures or other similar instruments, (d) all obligations of such person under currency, interest rate or other swaps, and all hedging and other obligations of such person under other derivative instruments, (e) all indebtedness created
or arising under any conditional sale or other title retention agreement with respect to property acquired by such person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to
repossession or sale of such property), (f) all obligations of such person as lessee under leases that have been or should be, in accordance with IFRS, recorded as capital leases, (g) all obligations, contingent or otherwise, of such
person under acceptance, letter of credit or similar facilities, (h) all obligations of such person to purchase, redeem, retire, defease or otherwise acquire for value any share capital of such person or any warrants, rights or options to
acquire such share capital, valued, in the case of redeemable preferred shares, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends, (i) all Indebtedness of others referred to in clauses
(a) through (h) above guaranteed directly or indirectly in any manner by such person, and (j) all Indebtedness referred to in clauses (a) through (h) above secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Liens on property (including accounts and contract rights) owned by such person, even though such person has not assumed or become liable for the payment of such Indebtedness.
Injunction means, as of any date, any final, non-appealable judgment, restraining order or permanent injunction, which is
in effect as of such date that prohibits the consummation of the Transactions and has been issued by any Governmental Authority in any jurisdiction that is material to the business of Holdco, Parent or the Company.
Insolvent means, with respect to any person (a) the present fair saleable value of such persons assets is less
than the amount required to pay such persons total Indebtedness, (b) such person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (c) such
person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature, or (d) such person has unreasonably small capital with which to conduct the business in which it is engaged as such
business is now conducted and is proposed to be conducted.
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Intellectual Property means all U.S., PRC, and other foreign intellectual
property and rights therein, including (a) patents, patent applications, patent disclosures, provisionals, inventions (whether or not patentable and whether or not reduced to practice), and any reissues, continuations, continuations in part,
counterparts, divisions, extensions or reexaminations thereof, and any statutory invention registrations, (b) trademarks, service marks, trade dress, logos, trade names, corporate names and other source identifiers, and registrations and
applications for registration thereof, (c) copyrightable works, copyrights, moral rights, and registrations and applications for registration thereof, (d) Internet domain names, social and mobile media identifiers, (e) confidential
and proprietary information, including Trade Secrets, know-how, inventions (whether or not patentable and whether or not reduced to practice), drawings, specifications, designs, techniques, technical information, algorithms, processes, methods net
lists, and code modules, (f) Software, (g) all other intellectual property rights, and (h) all income, royalties, damages and payments due or payable, the right to sue and recover for past or future infringements or misappropriation
thereof and any and all corresponding rights that, now or hereafter, may be secured throughout the world.
Intervening
Event shall mean an event, occurrence or development with respect to the Company or its Subsidiaries or the business, assets or operations of the Company or its Subsidiaries that (a) is material to the Group Companies, taken as a whole,
(b) occurs after the date of this Agreement and becomes known to the Company Board and the Special Committee before receipt of the Requisite Company Vote and (c) the underlying facts of which were not known to the Company Board or the Special
Committee on the date of this Agreement; provided that in no event shall the receipt, existence of or terms of an Acquisition Proposal or a Superior Proposal constitute or be taken into account in determining an Intervening Event.
IT Assets means computers, hardware, Software, firmware, middleware, servers, workstations, routers, hubs, switches, data
communications lines, and all other information technology equipment, and all associated documentation, in each case, owned by the Group Companies or licensed or leased by the Group Companies pursuant to written agreement.
knowledge means, with respect to the Company, the actual knowledge of Chairman Parties, Ricky Ng and Zhongmin Shen, and
with respect to any other party hereto, the actual knowledge of any director of such party, in each case, after due inquiry and investigation.
Law means any statute, law, ordinance, code or Order;
Liens means any security interest, pledge, hypothecation, mortgage, lien (including environmental and Tax liens),
violation, charge, lease, license, encumbrance, servient easement, adverse claim, reversion, reverter, preferential arrangement, restrictive covenant, condition or restriction of any kind, including any restriction on the use, voting, transfer,
receipt of income or other exercise of any attributes of ownership.
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Onshore Subsidiary means any Subsidiary incorporated within the PRC.
Order means any award, writ, injunction, determination, rule, regulation, judgment, decree or executive order.
Permitted Encumbrances means (i) Taxes, assessments and other governmental levies, fees or charges imposed which are
not due and payable, or which are being contested in good faith by appropriate proceedings; (ii) mechanics, carriers, workmens and repairmens liens and other similar liens for labor, materials or supplies incurred in the
ordinary course of business relating to obligations as to which there is no default on the part of the Company or any of its Subsidiaries or that secure a liquidated amount, that are being contested in good faith by appropriate proceedings;
(iii) leases, licenses and subleases (other than capital leases and leases underlying sale and leaseback transactions); (iv) Liens imposed by applicable Law; (v) pledges or deposits to secure obligations under workers
compensation laws or similar legislation or to secure public or statutory obligations, in each case, in the ordinary course of business; (vi) pledges or deposits to secure the performance of bids, trade contracts, leases, surety and appeal
bonds, performance bonds and other obligations of a similar nature, in each case, in the ordinary course of business; (vii) easements, covenants and rights of way (unrecorded and of record) and other similar restrictions of record, and zoning,
building and other similar restrictions, in each case, that do not adversely affect in any material respect the current use of the applicable property owned, leased, used or held for use by the Company or any of its Subsidiaries; (viii) Liens
that are disclosed in the Company SEC Reports filed or furnished prior to the date hereof; (ix) Liens securing Indebtedness or liabilities that (A) are reflected in the Company SEC Reports filed or furnished prior to the date hereof or
(B) have otherwise been disclosed to Parent; (x) zoning, building codes and other land use Laws regulating the use or occupancy of such real property or the activities conducted thereon which are imposed by any Governmental Authority
having jurisdiction over such real property which are not violated by the current use or occupancy of such real property or the operation of the business thereon; and (xi) any other Liens that do not secure a liquidated amount, that have been
incurred or suffered in the ordinary course of business and that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
person means an individual, corporation, partnership, limited partnership, limited liability company, syndicate, person
(including, without limitation, a person as defined in Section 13(d)(3) of the Exchange Act), trust, association or entity or government, political subdivision, agency or instrumentality of a government.
Representatives means, with respect to any party, such partys officers, directors, employees, accountants,
consultants, financial and legal advisors, agents and other representatives.
Rollover Agreements means the rollover
agreements, dated as of the date hereof, between Holdco, Parent and each of the Rollover Securityholders.
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Rollover Securityholders means the Chairman Parties and the other shareholders
party to the Rollover Agreement.
SAFE Circular 7 means the SAFE Circular on Certain Issues on Foreign
Exchange Registration on Domestic Individuals Participation in Equity Incentive Plan of Foreign Listed Companies issued by SAFE on March 16, 2012.
SAFE Circular 37 means the Notice on Relevant Issues Concerning Foreign Exchange Control of Domestic
Residents Overseas Investment and Financing and Roundtrip Investment Through Offshore Special Purpose Vehicles issued by SAFE on July 4, 2014, and any implementation, successor rule or regulation related thereto under the PRC law.
SAFE Circular 75 means the Notice Regarding Certain Administrative Measures on Financing and Inbound
Investments by PRC Residents Through Offshore Special Purpose Vehicles issued by SAFE on October 21, 2005 and which became effective as of November 1, 2005, and any implementation, successor rule or regulation related thereto under the
PRC law.
Share Incentive Plan means the Companys 2010 Equity Incentive Plan (as amended on
September 1, 2013).
Social Security Benefits means any social insurance, pension insurance benefits, medical
insurance benefits, work-related injury insurance benefits, maternity insurance benefits, unemployment insurance benefits and public housing reserve fund benefits or similar benefits, in each case as required by any applicable Law or contractual
arrangements.
Software means any and all (i) computer programs and software code, including any and all software
implementations of algorithms, applications, application programming interfaces, architecture, utilities, models and methodologies, whether in object code, interpreted code or source code, (ii) databases and compilations, including any and all
data and collections of data (including geospatial or mobile related data and rights thereto), whether machine readable or otherwise, and (iii) descriptions, flow-charts and other work product used to design, plan, organize and develop any of
the foregoing, including any and all screens, user interfaces, report formats, firmware, middleware, software applications, development tools, templates, menus, diagnostics, files, records, schematics, verilog files, netlists, emulation and
simulation reports, test vectors, buttons and icons.
Sponsors means Shanghai Dajun Guangcheng Capital Fund and
Guangzhou Huifu Kaile Investment (L.P.).
Subsidiary of any person means any legal entity (i) of which such person
or any other Subsidiary of such person is a general or managing partner, (ii) the outstanding voting securities or interests of which, having by their terms ordinary voting power to elect a majority of the board of directors or other body
performing similar functions with respect to such corporation or other organization, are directly or indirectly owned or controlled by such person or by any one or more of its Subsidiaries or (iii) of which such person controls through
contractual arrangements.
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Superior Proposal means any unsolicited bona fide written Acquisition Proposal
(each reference to ten percent (10%) or more in the definition of Acquisition Proposal shall be replaced with more than fifty percent (50%)) on terms that the Special Committee shall have determined in
good faith (after receiving the advice of its financial advisor who shall be an internationally recognized investment banking firm and outside legal counsel) (i) would be reasonably likely to be consummated in accordance with its terms, taking
into account all legal, financial, regulatory, timing and other aspects of the proposal (including conditionality) and the person making the proposal and (ii) if consummated, would result in a transaction more favorable to the holders of the
Ordinary Shares and holders of ADSs (other than holders of the Rollover Securities) from a financial point of view than the Merger, after giving effect to all adjustments to the terms thereof which may be offered by Parent in writing (including
pursuant to Section 6.04(d)); provided, however, that any such offer shall not be deemed to be a Superior Proposal if (A) the offer is subject to the conduct of any due diligence review or investigation of the
Company or any of its Subsidiaries by the party making the offer, (B) the consummation of the transactions contemplated by such offer is conditioned upon receipt of financing or (C) the consummation of the transactions contemplated by such
offer is conditioned upon obtaining any consent or approval of a Governmental Authority or other third party that is not required pursuant to this Agreement as a condition to the closing of the Merger (after giving effect to all modifications or
adjustments to the terms thereof which may be offered by Parent in writing (including pursuant to Section 6.04(d)).
Taxes means any and all taxes of any kind or any other similar charges (together with any and all interest, penalties,
additions to tax and additional amounts imposed with respect thereto) imposed by any Governmental Authority, including, without limitation: taxes or other charges on or with respect to income, franchise, windfall or other profits, gross receipts,
property, sales, use, capital stock, payroll, environmental, employment (including withholding obligations imposed on employer/payer), social security, workers compensation, unemployment compensation or net worth, excise, withholding,
alternative or add-on minimum, ad valorem, stamp, transfer, value-added or gains taxes, license, registration and documentation fees, customers duties, tariffs and other like assessment or charge of any kind whatsoever, in each case, whether
disputed or not.
Tax Return means any return, report or similar filing (including the attached schedules) filed or
required to be filed with respect to Taxes, including any information return, claim for refund, amended return or declaration of estimated Taxes.
Third Party means any person or group (as defined under Section 13(d) of the Exchange Act) of persons,
other than Parent or the Company or any of their respective affiliates or Representatives.
Trade Secrets means any
personally identifiable information, material confidential or proprietary information and trade secrets, in each case, developed or collected by any Group Company that, in accordance with written Contracts or by operation of applicable Law, belong
to their customers, clients, or other persons and regarding which any Group Company owes a duty or obligation under applicable Law or any written Contract to maintain the security or confidentiality thereof.
66
Vested Company Option means any Company Option that shall have become vested
on or prior to the Closing Date in accordance with the terms of such Company Option or pursuant to this Agreement.
(b) The
following terms have the meaning set forth in the Sections set forth below:
|
|
|
Defined Term |
|
Location of Definition |
|
|
Action |
|
§ 3.09 |
ADSs |
|
§ 2.01(a) |
Agreement |
|
Preamble |
Alternative Financing |
|
§ 6.14(a) |
Applicable Date |
|
§ 3.07(a) |
Bankruptcy and Equity Exception |
|
§ 3.04(a) |
Business Intellectual Property |
|
§ 3.12(b) |
Certifying Officers |
|
§ 3.07(d) |
Change in the Company Recommendation |
|
§ 6.04(c) |
CICL |
|
Recitals |
Closing |
|
§ 1.02 |
Closing Date |
|
§ 1.02 |
Company |
|
Preamble |
Company Board |
|
Recitals |
Company Recommendation |
|
§ 3.04(b) |
Company Related Parties |
|
§ 8.04 |
Company Requisite Regulatory Approvals |
|
§ 3.05(b) |
Company SEC Reports |
|
§ 3.07(a) |
Company Termination Fee |
|
§ 8.03(a) |
Control Agreements |
|
§ 3.15(a) |
Debt Commitment Letter |
|
§ 4.04(a) |
Debt Financing |
|
§ 4.04(a) |
Deposit Agreement |
|
§ 2.06 |
Depositary |
|
§ 2.06 |
dissenters rights |
|
§ 2.03(a) |
Dissenting Shareholders |
|
§ 2.03(a) |
Dissenting Shares |
|
§ 2.03(a) |
Effective Time |
|
§ 1.03 |
Environmental Permits |
|
§ 3.16 |
Equity Commitment Letter |
|
§ 4.04(a) |
Equity Financing |
|
§ 4.04(a) |
Evaluation Date |
|
§ 3.07(d) |
Exchange Act |
|
§ 3.05(b) |
Exchange Fund |
|
§ 2.04(a) |
Excluded Shares |
|
§ 2.01(a) |
Expenses |
|
§ 8.03(a) |
Financial Advisor |
|
§ 3.04(c) |
67
|
|
|
Defined Term |
|
Location of Definition |
|
|
Financing |
|
§ 4.04(a) |
Financing Commitments |
|
§ 4.04(a) |
Guarantors |
|
Recitals |
Holdco |
|
Preamble |
IFRS |
|
§ 3.07(b) |
Indemnified Parties |
|
§ 6.05(b) |
Interest |
|
§ 2.02(c) |
IP Contracts |
|
§ 3.12(b) |
Leased Real Property |
|
§ 3.11(b) |
Limited Guarantee |
|
§ Recitals |
Major Customers |
|
§ 3.19(a) |
Major Suppliers |
|
§ 3.19(b) |
Material Company Permits |
|
§ 3.06(a) |
Material Contracts |
|
§ 3.15(a) |
Merger |
|
Recitals |
Merger Consideration |
|
§ 2.04(a) |
Merger Sub |
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Preamble |
Notice Period |
|
§ 6.04(c) |
NYSE |
|
§ 3.05(b) |
Ordinary Shares |
|
§ 2.01(a) |
Owned Business IP |
|
§ 3.12(a) |
Owned Real Property |
|
§ 3.11(a) |
Parent |
|
Preamble |
Parent Related Parties |
|
§ 8.04 |
Parent Requisite Regulatory Approvals |
|
§ 4.03(b) |
Parent Termination Fee |
|
§ 8.03(b) |
Paying Agent |
|
§ 2.04(a) |
Per ADS Merger Consideration |
|
§ 2.01(a) |
Per Share Merger Consideration |
|
§ 2.01(a) |
Plan of Merger |
|
§ 1.03 |
PRC |
|
§ 3.06(d) |
Proxy Statement |
|
§ 6.01(a) |
Record ADS Holders |
|
§ 6.02(b) |
Registered Intellectual Property |
|
§ 3.12(a) |
Required Information |
|
§ 6.14(c) |
Requisite Company Vote |
|
§ 3.04(a) |
Requisite Regulatory Approvals |
|
§ 4.03(b) |
Rollover Securities |
|
Recitals |
SAFE |
|
§ 3.06(d) |
SAFE Rules and Regulations |
|
§ 3.06(e) |
Sanctions |
|
§ 3.06(i) |
SEC |
|
§ 3.05(b) |
Securities Act |
|
§ 3.07(a) |
Share Certificates |
|
§ 2.04(b) |
Shareholders Meeting |
|
§ 6.02(b) |
Special Committee |
|
Recitals |
68
|
|
|
Defined Term |
|
Location of Definition |
|
|
Support Agreement |
|
Recitals |
Surviving Company |
|
§ 1.01 |
Takeover Statute |
|
§ 3.23 |
Termination Date |
|
§ 8.01(b) |
Transactions |
|
Recitals |
Uncertificated Shares |
|
§ 2.04(b) |
(c) When a reference is made in this Agreement to a Section, Article or Exhibit such reference
shall be to a Section, Article or Exhibit of this Agreement unless otherwise indicated. The table of contents and headings contained in this Agreement or in any Exhibit are for convenience of reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Any capitalized terms used in any Exhibit but not otherwise defined therein shall have
the meaning set forth in this Agreement. All Exhibits annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth herein. The word including and words of similar import when used in
this Agreement will mean including, without limitation, unless otherwise specified.
SECTION 9.04 Severability. If
any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long
as the economic or legal substance of the Transactions is not affected in any manner adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the Transactions be consummated as originally contemplated to the fullest extent
possible.
SECTION 9.05 Entire Agreement; Assignment. This Agreement constitutes the entire agreement among the parties with
respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof. This Agreement shall not be assigned (whether pursuant to
a merger, by operation of law or otherwise), except that Parent and Merger Sub may assign all or any of their rights and obligations hereunder to any affiliate of Parent, provided that no such assignment shall relieve the assigning party of
its obligations hereunder if such assignee does not perform such obligations.
SECTION 9.06 Parties in Interest. This
Agreement shall be binding upon and inure solely to the benefit of each party hereto, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person any right, benefit or remedy of any nature whatsoever under
or by reason of this Agreement, other than Sections 6.05 and 8.04 (which are intended to be for the benefit of the persons covered thereby and may be enforced by such persons). For the avoidance of doubt, in no event shall any holders of
Ordinary Shares (including Ordinary Shares represented by ADSs) or holders of Company Share Awards, in each case in their capacity as such, have any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
69
SECTION 9.07 Specific Performance. (a) The parties hereto agree that irreparable
damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that, subject to Section 8.04 and Section 9.07(b), each party shall be entitled to specific performance of the
terms hereof (including the other parties obligation to consummate the Transactions, subject in each case to the terms and conditions of this Agreement, including Section 8.04 and Section 9.07(b)), including an injunction or
injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Subject to Section 8.04 and Section 9.07(b), each party hereby waives (i) any defenses in any action for specific performance,
including the defense that a remedy at law would be adequate, and (ii) any requirement under any Law to post a bond or other security as a prerequisite to obtaining equitable relief. If Parent or Merger Sub brings any Action to enforce
specifically the obligations of the Company, or if the Company brings any Action to enforce specifically the obligations of Parent and Merger Sub, in each case in accordance with the terms herein, to consummate the Transactions, the Termination Date
shall automatically be extended by (x) the amount of time during which such Action is pending, plus twenty (20) Business Days or (y) if longer, such time period established by the court presiding over the Action.
(b) Notwithstanding anything herein to the contrary, the Company shall not be entitled to seek or be awarded any injunction,
specific performance or other equitable relief to enforce Holdcos, Parents and Merger Subs obligations to consummate the Transactions, except that the Company shall have the right to see specific performance against Holdco, Parent
and Merger Sub to cause the Equity Financing to be funded and to complete the Closing only in the event that each of the following conditions has been satisfied: (i) all of the conditions set forth in Sections 7.01, 7.02 and 7.03 have been
satisfied (other than those conditions that by their nature are to be satisfied by actions taken at the Closing, but subject to their satisfaction or waiver by the party having the benefit thereof), and Holdco, Parent and Merger Sub fail to cause
the Equity Financing to be funded and complete the Closing by the date the Closing is required to have occurred pursuant to Section 1.02, (ii) the Debt Financing (or, if applicable, Alternative Financing) has been funded or will be funded
at the Closing if the Equity Financing is funded at the Closing, and (iii) the Company has irrevocably confirmed by written notice delivered to Parent and the providers of Parents Debt Financing (or, if applicable, Alternative Financing)
that (x) all conditions set forth in Section 7.03 have been satisfied (other than (other than those conditions that by their nature are to be satisfied by actions taken at the Closing, but subject to their satisfaction or waiver by the
party having the benefit thereof)or that the Company is willing to waive any unsatisfied conditions in Section 7.03 and (y) if the Financing is funded, the Company stands ready, willing and able to consummate the Transactions. For the
avoidance of doubt, in no event shall the Company be entitled to enforce or seek to enforce specifically Parents right to cause the Equity Financing to be funded or to consummate the Merger if the Debt Financing has not been funded (or will
not be funded at the Closing even if the Equity Financing is funded at the Closing)
SECTION 9.08 Governing Law; Jurisdiction.
This Agreement shall be interpreted, construed and governed by and in accordance with the Laws of the State of New York without regard to the conflicts of law principles thereof. Notwithstanding the foregoing, the following matters arising out of or
relating to this Agreement shall be construed, performed and enforced in accordance with the Laws of the Cayman Islands in respect of which the parties hereto hereby irrevocably submit to the non-exclusive jurisdiction of the courts of the Cayman
Islands: the Merger, the vesting of the rights, property, choses in action, business, undertaking, goodwill, benefits, immunities and privileges, contracts, obligations, claims, debts and liabilities of the Merger Sub in the Company, the
cancellation of the Ordinary Shares, the rights provided in Section 238 of the CICL, the fiduciary or other duties of the Company Board and the board of directors of Merger Sub and the internal corporate affairs of the Company and Merger Sub.
All Actions arising under the laws of the State of New York out of or relating to this Agreement shall be heard and determined exclusively in any New York federal court sitting in the Borough of Manhattan of The City of New York; provided,
however, that if such federal court does not have jurisdiction over such Action, such Action shall be heard and determined exclusively in any New York state court sitting in the Borough of Manhattan of The City of New York. Consistent with
the preceding sentence, the parties hereto hereby (a) submit to the exclusive jurisdiction of any federal or state court sitting in the Borough of Manhattan of The City of New York for the purpose of any Action arising under the laws of the
State of New York out of or relating to this Agreement brought by any party hereto and (b) irrevocably waive, and agree not to assert by way of motion, defense, or otherwise, in any such Action, any claim that it is not subject personally to
the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the Action is brought in an inconvenient forum, that the venue of the Action is improper, or
that this Agreement or the transactions contemplated by this Agreement may not be enforced in or by any of the above-named courts.
70
SECTION 9.09 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
EACH OF THE PARTIES HERETO HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.09.
SECTION 9.10 Headings. The descriptive headings contained in this Agreement are included for convenience of reference only and
shall not affect in any way the meaning or interpretation of this Agreement.
SECTION 9.11 Counterparts. This Agreement may be
executed and delivered (including by electronic or facsimile transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
71
IN WITNESS WHEREOF, Holdco, Parent, Merger Sub and the Company have caused this Agreement to be
executed as of the date first written above by their respective officers thereunto duly authorized.
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ZHONGSHAN RUISHENG ANTAI INVESTMENT CO., LTD |
|
|
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By |
|
/s/ Chuanwei Zhang |
Name: |
|
Chuanwei Zhang |
Title: |
|
Authorized Signatory |
|
REGAL CONCORD LIMITED, a British
Virgin Islands Company |
|
|
By |
|
/s/ Chuanwei Zhang |
Name: |
|
Chuanwei Zhang |
Title: |
|
Authorized Signatory |
|
REGAL ALLY LIMITED, a Cayman
Islands Company |
|
|
By |
|
/s/ Chuanwei Zhang |
Name: |
|
Chuanwei Zhang |
Title: |
|
Authorized Signatory |
[SIGNATURE
PAGE MERGER AGREEMENT]
|
|
|
CHINA MING YANG WIND POWER GROUP LIMITED |
|
|
By: |
|
/s/ Stephen Markscheid |
Name: |
|
Stephen Markscheid |
Title: |
|
Director |
[SIGNATURE
PAGE MERGER AGREEMENT]
ANNEX A
FORM OF PLAN OF MERGER
The Companies Law (2013 Revision) of the Cayman Islands
Plan of Merger
This plan of merger (the
Plan of Merger) is made on [●] 2016
BETWEEN
(1) |
China Ming Yang Wind Power Group Limited, an exempted company incorporated under the laws of the Cayman Islands with its registered office at [●], Cayman Islands (the Company or the
Surviving Company); and |
(2) |
Regal Ally Limited, an exempted company incorporated under the laws of the Cayman Islands with its registered office at Floor 4, Willow House, Cricket Square, P.O. Box 2804, Grand Cayman, KY1-1112, Cayman Islands
(Merger Sub). |
WHEREAS
(A) |
Merger Sub and the Company have agreed to merge (the Merger) on the terms and conditions contained or referred to in an Agreement and Plan of Merger (the Agreement) dated
February 2, 2016 among Regal Concord Limited, a business company with limited liability incorporated under the laws of the British Virgin Islands, the Merger Sub and the Company, a copy of which is attached as Annexure 1 to this Plan of Merger
and under the provisions of Part XVI of the Companies Law (2013 Revision) (the Companies Law), pursuant to which (i) Merger Sub will merge with and into the Company and cease to exist, (ii) the Surviving Company will
continue as the surviving company in the Merger, and (iii) the undertaking, property and liabilities of Merger Sub will vest in the Surviving Company. |
(B) |
Merger Sub and the Company are entering into this Plan of Merger pursuant to the provisions of section 233 of the Companies Law. |
(C) |
Terms not otherwise defined in this Plan of Merger shall have the meanings given to them under the Agreement. |
Now therefore this Plan of Merger provides as follows:
1 |
The constituent companies (as defined in the Companies Law) to the Merger are the Company and Merger Sub. |
2 |
The name of the surviving company (as defined in the Companies Law) shall be [Hurricane]. |
3 |
The registered office of the Surviving Company will be at [●], Cayman Islands. |
4 |
Immediately prior to the Effective Date (as defined below), the authorised share capital of the Company was US$1,000,000 divided into 1,000,000,000 ordinary shares with a par value of US$0.001 each (the
Ordinary Shares), of which [160,534,813] Ordinary Shares have been issued. |
5 |
Immediately prior to the Effective Date (as defined below), the authorised share capital of Merger Sub was US$50,000 divided into 50,000 ordinary shares of a par value of US$1.00 each, of which 1 ordinary share has been
issued. |
6 |
The authorized share capital of the Surviving Company shall be US$50,000 divided into 50,000 ordinary shares with a par value of US$1.00 each. |
7 |
The date on which it is intended that the Merger is to take effect is [●] 2016 (the Effective Date). |
8 |
The terms and conditions of the Merger are such that, on the Effective Date: |
|
8.1 |
Each Ordinary Share issued and outstanding immediately prior to the Effective Date, other than Excluded Shares, shall be cancelled and cease to exist and shall thereafter represent the right to receive the Per Share
Merger Consideration, being US$2.51 in cash per Ordinary Share without interest. |
|
8.2 |
Each Excluded Share (other than the Dissenting Shares) issued and outstanding immediately prior to the Effective Date shall be cancelled and cease to exist, without payment of any consideration or distribution therefor.
|
|
8.3 |
Each Dissenting Share issued and outstanding immediately prior to the Effective Date and that is held by a shareholder who shall have validly exercised and not effectively withdrawn or lost its right to dissent from the
Merger in accordance with Section 238 of the Companies Law shall be cancelled and cease to exist in accordance with Section 238 of the Companies Law, and each such Dissenting Shareholder shall be entitled to receive only the payment of the
fair value of such Dissenting Shares held by it in accordance with the provisions of Section 238 of the Companies Law. Each Dissenting Share held by a shareholder who fails to exercise or withdraw its rights to dissent from the Merger in
accordance with Section 238 of the Companies Law shall (i) not be deemed to be a Dissenting Share and (ii) be and be deemed to have been cancelled and cease to exist, as of the Effective Date, and shall thereafter represent the right
to receive the Per Share Merger Consideration, being US$2.51 in cash per Ordinary Share without interest. |
|
8.4 |
Each ordinary share of a par value of US$1.00 each of Merger Sub issued and outstanding immediately prior to the Effective Date shall be converted into one (1) validly issued, fully paid and non-assessable ordinary
share, par value US$1.00 per share, of the Surviving Company. |
9 |
The rights and restrictions attaching to the shares in the Surviving Company are set out in the Amended and Restated Memorandum and Articles of Association of the Surviving Company in the form annexed at Annexure 2 to
this Plan of Merger. |
10 |
The Memorandum and Articles of Association of the Surviving Company shall be amended and restated in the form annexed at Annexure 2 to this Plan of Merger on the Effective Date. |
11 |
There are no amounts or benefits payable to the directors of the constituent companies on the Merger becoming effective. |
12 |
Merger Sub has granted no fixed or floating security interests that are outstanding as at the date of this Plan of Merger. |
13 |
The Company has granted no fixed or floating security interests that are outstanding as at the date of this Plan of Merger. |
2
14 |
The names and addresses of each director of the Surviving Company are: |
15 |
This Plan of Merger has been approved by the board of directors of each of the Company and Merger Sub pursuant to section 233(3) of the Companies Law. |
16 |
This Plan of Merger has been authorised by the shareholders of each of the Company and Merger Sub pursuant to section 233(6) of the Companies Law. |
17 |
At any time prior to the Effective Date, this Plan of Merger may be terminated pursuant to the terms and conditions of the Agreement and in accordance with Section 235(1) of the Companies Law. |
18 |
This Plan of Merger may be executed in counterparts. |
19 |
This Plan of Merger shall be governed by and construed in accordance with the laws of the Cayman Islands. |
20 |
This Plan of Merger may be executed by fascimile and in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument, on the date indicated
alongside the names below. |
In witness whereof the parties hereto have caused this Plan of Merger to be executed on the day and year
first above written.
[Signature pages to follow.]
3
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SIGNED by |
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) |
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Duly authorised for |
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) |
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and on behalf of |
|
) |
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Director |
|
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China Ming Yang Wind Power |
|
) |
|
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Group Limited |
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) |
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4
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SIGNED by |
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) |
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Duly authorised for |
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) |
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and on behalf of |
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) |
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Director |
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Regal Ally Limited |
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) |
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5
Annexure 1
Agreement and Plan of Merger
Annexure 2
Amended and Restated Memorandum and Articles of Association of the Surviving Company
Exhibit 99.3
Execution Version
LIMITED GUARANTEE
LIMITED
GUARANTEE, dated as of February 2, 2016 (this Limited Guarantee), by Mr. Chuanwei Zhang (the Guarantor) in favor of China Ming Yang Wind Power Group Limited (the Guaranteed Party).
1. Guarantee.
(a) To induce the Guaranteed Party to enter into that certain Agreement and Plan of Merger, dated as of February 2, 2016 (as amended,
restated, supplemented or otherwise modified from time to time, the Merger Agreement) by and among the Guaranteed Party, Zhongshan Ruisheng Antai Investment Co., Ltd
, a limited liability company incorporated under the laws of the Peoples Republic of China (Holdco), Regal Concord Limited, an exempted company with limited liability incorporated under the laws of the
British Virgin Islands and a wholly-owned subsidiary of Holdco (Parent), and Regal Ally Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands and a wholly-owned subsidiary of Parent
(Merger Sub), pursuant to which Merger Sub will merge with and into the Guaranteed Party (the Merger), the Guarantor, intending to be legally bound, hereby absolutely, irrevocably and unconditionally guarantees to the
Guaranteed Party, as a primary obligor and not merely as surety to the Company, on the terms and conditions set forth herein, the due and punctual payment when due of 51.18% (the Guaranteed Percentage) of the payment obligations of
Parent with respect to the Parent Termination Fee pursuant to Section 8.03(c) and 8.03(d) of the Merger Agreement and subject to the terms and limitations of Section 8.04 of the Merger Agreement in accordance with the terms thereof (as
such obligations, covenants and agreements may be modified, amended, waived or terminated in accordance with the terms of the Merger Agreement, the Obligations), provided that in no event shall the Guarantors aggregate liability
under this Limited Guarantee exceed US$ 6,141,732 (the Cap), it being understood that this Limited Guarantee may not be enforced against the Guarantor without giving effect to the Cap. The Guaranteed Party hereby agrees that in no event
shall the Guarantor be required to pay to any person under, in respect of, or in connection with this Limited Guarantee, more than the Cap, and that Guarantor shall not have any obligation or liability to any person relating to, arising out of or in
connection with this Limited Guarantee or the Merger Agreement other than as expressly set forth herein. The Guaranteed Party further acknowledges that in the event that Parent or Merger Sub has any unsatisfied Obligations, payment of the Guaranteed
Percentage of such unsatisfied Obligations by Guarantor (or by any other person, including Parent or Merger Sub, on behalf of Guarantor) shall constitute satisfaction in full of Guarantors obligation with respect thereto. All payments
hereunder shall be made in lawful money of the United States, in immediately available funds. The Guarantor acknowledges that the Guaranteed Party entered into the transactions contemplated by the Merger Agreement partly in reliance upon the
execution of this Limited Guarantee. Concurrently with the delivery of this Limited Guarantee, the parties set forth on Schedule A (each an Other Guarantor) are also entering into limited guarantees substantially identical to this
Limited Guarantee (each, an Other Guarantee) with the Guaranteed Party. Each capitalized term used and not defined herein shall have the meaning ascribed to it in the Merger Agreement, except as otherwise provided.
1
(b) The Guarantor promises and undertakes to make all payments hereunder free and clear of any
deduction, offset, defense, claim or counterclaim of any kind. If Parent or Merger Sub fails to pay the Obligations as and when due pursuant to Section 8.03(c) of the Merger Agreement, as applicable, then the Guarantors liabilities to the
Guaranteed Party hereunder in respect of such Obligations shall, at the Guaranteed Partys option, become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Partys option, and so
long as Parent or Merger Sub remains in breach of its Obligations, take any and all actions available hereunder or under applicable law to collect the Obligations from the Guarantor subject to the Cap.
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of
counsel) incurred by the Guaranteed Party in connection with the enforceability and enforcement of its rights hereunder if (i) the Guarantor asserts in any arbitration, litigation, or other proceeding that this Limited Guarantee is illegal,
invalid or unenforceable in accordance with its terms, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable.
(d) In furtherance of the foregoing the Guarantor acknowledges that the Guaranteed Party may, in its sole discretion, bring and prosecute a
separate action or actions against the Guarantor for the full amount of the Guarantors Guaranteed Percentage of the Obligations (subject to the Cap), regardless of whether action is brought against any other person (including Parent, Merger
Sub or any Other Guarantor) or whether any such person is joined in any such action or actions.
2. Nature of Guarantee. The
Guarantors liability hereunder is absolute, unconditional, irrevocable and continuing irrespective of any modification, amendment or waiver of or any consent to departure from the Merger Agreement that may be agreed to by Parent or Merger Sub.
Without limiting the foregoing, the Guaranteed Party shall not be obligated to file any claim relating to the Obligations in the event that Parent or Merger Sub becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure
of the Guaranteed Party to so file shall not affect the Guarantors obligations hereunder. In the event that any payment to the Guaranteed Party in respect of the Obligations is rescinded or must otherwise be returned for any reason whatsoever,
the Guarantor shall remain liable hereunder with respect to its Guaranteed Percentage of the Obligations (subject to the Cap) as if such payment had not been made by the Guarantor. This Limited Guarantee is an unconditional guarantee of payment and
not of collection. This Limited Guarantee is a primary obligation of the Guarantor (subject to the Cap) and is not merely the creation of a surety relationship, and the Guaranteed Party shall not be required to proceed against Parent or Merger Sub
first before proceeding against the Guarantor hereunder.
2
3. Changes in Obligations, Certain Waivers.
(a) The Guarantor agrees that the Guaranteed Party may at any time and from time to time, without notice to or further consent of the
Guarantor, extend the time of payment of any of the Obligations, and may also make any agreement with Parent or Merger Sub for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of
the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person thereof without in any way impairing or affecting the Guarantors obligations under this Limited Guarantee. The Guarantor agrees that
the obligations of Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or
remedy against Parent, Merger Sub or any Other Guarantor; (ii) any change in the time, place or manner of payment of any of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the
terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any of the Obligations; (iii) the addition, substitution or release of any
person now or hereafter liable with respect to any of the Obligations or otherwise interested in the transactions contemplated by the Merger Agreement (including any Other Guarantor); (iv) any change in the corporate existence, structure or
ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any of the Obligations or otherwise interested in the transactions contemplated by the Merger Agreement (including any Other Guarantor); (v) any
insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any of the Obligations or otherwise interested in the transactions contemplated by the Merger
Agreement (including any Other Guarantor); (vi) except as provided herein, the existence of any claim, set-off or other right which the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection
with the Obligations or otherwise; (vii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations; (viii) any other act or omission that may in any manner or to any extent vary the risk
of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with
their terms); or (ix) the value, genuineness, validity, regularity, illegality or enforceability of the Merger Agreement.
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(b) To the fullest extent permitted by Law the Guarantor hereby expressly waives any and all
rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations,
presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any Obligations incurred and all other notices of any kind (other than notices expressly required to be provided to Parent or Merger Sub pursuant to
the Merger Agreement or notices expressly required to be provided pursuant to this Limited Guarantee), all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to
require the marshalling of assets of Parent or Merger Sub or any other person interested in the transactions contemplated by the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the
payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits
from the transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and
affiliates not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the transactions contemplated thereby or the Equity Commitment Letter between the Guarantor and
Parent (the Equity Commitment Letter), against the Guarantor or any Non-Recourse Party (as defined in Section 9 herein), except, with respect to the Guarantor or any particular Non-Recourse Party, as the case may be, for Retained
Claims (as defined in Section 9 herein) arising under, or in connection with, the Merger Agreement, the transactions contemplated thereby or such Equity Commitment Letter to which the Guarantor or such Non-Recourse Party is a party, as the case
may be. The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its affiliates not to institute, any proceeding asserting that this Limited Guarantee is illegal, invalid or unenforceable in
accordance with its terms.
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(d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any
rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantors obligations under or in respect of this Limited Guarantee or any other
agreement in connection therewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent or
Merger Sub or such other person (including any Other Guarantor), whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including, without limitation, the right to take or receive from Parent or Merger
Sub or such other person (including any Other Guarantor), directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations
and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment
in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property
and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable
under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for any Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited
Guarantee but subject to subsection (v) under Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the
Guarantor shall be similarly relieved of its obligations under this Limited Guarantee, and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the
Guarantors Cap) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the Obligations.
4. No Waiver; Cumulative Rights. No failure on the part of the Guaranteed Party to exercise, and no delay in exercising, any
right, remedy or power hereunder shall operate as a waiver thereof; nor shall any single or partial exercise by the Guaranteed Party of any right, remedy or power hereunder preclude any other or future exercise of any right, remedy or power
hereunder. Each and every right, remedy and power hereby granted to or otherwise available to the Guaranteed Party shall be cumulative and not exclusive of any other, and may be exercised by the Guaranteed Party at any time or from time to time. The
Guaranteed Party shall not have any obligation to proceed at any time or in any manner against, or exhaust any or all of the Guaranteed Partys rights against, the Parent or any other person (including any Other Guarantor) liable for any
Obligations prior to proceeding against the Guarantor hereunder.
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5. Representations and Warranties. The Guarantor hereby represents and warrants
that:
(a) (i) it has legal capacity to execute, deliver and perform this Limited Guarantee and (ii) the execution, delivery and
performance of this Limited Guarantee do not contravene any applicable provision of any material Law or result in any breach of any material contractual restriction binding on the Guarantor or its assets (other than any such breach that is not
reasonably likely to impair or delay the Guarantors performance of its obligations in any material respect);
(b) except as is not,
individually or in the aggregate, reasonably likely to impair or delay the Guarantors performance of its obligations in any material respect, all consents, approvals, authorizations, permits of, filings with and notifications to, any
governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to
or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee; and
(c) assuming due execution and delivery of this Limited Guarantee and the Merger Agreement by the Guaranteed Party, this Limited Guarantee
constitutes a legal, valid and binding obligation of the Guarantor enforceable against the Guarantor in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other
similar Laws affecting creditors rights generally, and (ii) general equitable principles (whether considered in a proceeding in equity or at Law).
(d) the Guarantor has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the
Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 8 hereof.
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6. No Assignment. Neither the Guarantor nor the Guaranteed Party may assign or
delegate its rights, interests or obligations hereunder to any other person, in whole or in part, (except by operation of Law) without the prior written consent of the other party hereto; provided, however, that the Guarantor can
assign its rights, interests and obligations hereunder, in whole or in part, without the prior written consent of the Guaranteed Party, (w) to any Other Guarantor or affiliated entity (including any affiliate), (x) to the entity listed on
Schedule B (the New Sponsor), (y) to any person or entity subject the Companys prior written consent (not to be unreasonably withheld) or (z) to any person or entity who agrees to be bound by this Limited Guarantee,
provided that, with respect to clause (z), such assignment does not relieve the Guarantor of any of its obligations or liability under this Limited Guarantee. Following any assignment pursuant to clause (w), clause (x) or clause (y) above,
the Guarantors Guaranteed Percentage and Cap shall be reduced by the amount of such obligation so assigned. Any attempted assignment in violation of this Section 6 shall be null and void.
7. Notices. All notices, requests, claims, demands and other communications hereunder shall be given by the means specified in
the Merger Agreement (and shall be deemed given as specified therein), as follows:
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if to the Guarantor, to: |
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Mr. Chuanwei Zhang Jianye
Road, Mingyang Industry Park National Hi-Tech Industrial Development Zone
Zhongshan, Guangdong 528437 Peoples Republic of
China |
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with a copy to: |
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Simpson Thacher & Bartlett
35/F ICBC Tower 3 Garden Road
Central, Hong Kong |
Attention: |
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Leiming Chen, Esq. |
Facsimile: |
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+ (852) 2869-7694 |
Email: |
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lchen@stblaw.com |
If to the Guaranteed Party, as provided in the Merger Agreement.
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8. Continuing Guarantee.
(a) This Limited Guarantee may not be revoked or terminated and shall remain in full force and effect and shall be binding on the Guarantor,
its successors and assigns until all of the Obligations payable under the Limited Guarantee have been paid in full. Notwithstanding the foregoing, this Limited Guarantee shall terminate and the Guarantor shall have no further obligations under this
Limited Guarantee as of the earliest of (i) the Effective Time, (ii) the termination of the Merger Agreement in accordance with its terms by mutual consent of Parent and the Guaranteed Party or under circumstances in which Parent and
Merger Sub would not be obligated to pay the Parent Termination Fee or otherwise to make payments pursuant to the Merger Agreement, (iii) the first anniversary of the date hereof, and (iv) 60 days after any termination of the Merger
Agreement in accordance with its terms under circumstances in which Parent and/or Merger Sub would be obligated to pay Parent Termination Fee or otherwise to make payments pursuant to the Merger Agreement if the Guaranteed Party has not presented a
claim for payment of any Obligation to the Guarantor by such 60th day, provided, that such claim shall set forth in reasonable detail the basis for such claim.
(b) Notwithstanding the foregoing, in the event that the Guaranteed Party or any of its affiliates asserts in any litigation or other
proceeding relating to this Limited Guarantee that the provisions of Section 1 hereof limiting the Guarantors maximum aggregate liability to the Cap or that any other provisions of this Limited Guarantee are illegal, invalid or
unenforceable in whole or in part, asserts that the Guarantor is liable in excess of or to a greater extent than its Guaranteed Percentage of any Obligation, or asserts any theory of liability against the Guarantor or any Non-Recourse Parties (as
defined below) with respect to the Merger Agreement, the Equity Commitment Letter or the transactions contemplated by the Merger Agreement other than the Retained Claims (as defined below) and the liability of the Guarantor under this Limited
Guarantee (as limited by the provisions hereof, including Section 1), then (i) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and shall thereupon be null and void, (ii) if the Guarantor has
previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party, and (iii) neither the Guarantor nor any Non-Recourse Parties (as defined below) shall have any liability to the
Guaranteed Party or any of its affiliates with respect to the Merger Agreement, the Equity Commitment Letter, the transactions contemplated by the Merger Agreement or under this Limited Guarantee.
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9. No Recourse. Notwithstanding anything that may be expressed or implied in this
Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party covenants, agrees and acknowledges that no person other than Guarantor has any
obligations hereunder and that, notwithstanding that Guarantor may be a partnership or limited liability company, the Guaranteed Party has no right of recovery under this Limited Guarantee or in any document or instrument delivered in connection
herewith, or for any claim based on, in respect of, or by reason of, such obligations or their creation, against, and no personal liability shall attach to, the former, current or future equity holders, controlling persons, directors, officers,
employees, agents, advisors, representatives, affiliates (other than any assignee under Section 6), members, managers, or general or limited partners of any of Parent, Merger Sub or any Other Guarantor, or any former, current or future
stockholder, controlling person, director, officer, employee, general or limited partner, member, manager, affiliate (other than any assignee under Section 6), agent, advisor, or representative of any of the Guarantor or the foregoing
(collectively, but not including Guarantor, Parent, Merger Sub or the Other Guarantors or their respective successors and assigns under the Merger Agreement, the Equity Commitment Letters, the Other Equity Commitment Letters (as defined in the
Equity Commitment Letters), this Limited Guarantee or the Other Guarantees, collectively, each a Non-Recourse Party), through Parent, Merger Sub or otherwise, whether by or through attempted piercing of the corporate veil, by or through
a claim by or on behalf of Parent or Merger Sub against any Non-Recourse Party (including any claim to enforce the Equity Commitment Letters or the Other Equity Commitment Letters), by the enforcement of any assessment or by any legal or equitable
proceeding, by virtue of any statute, regulation or applicable Law, or otherwise, and the Guaranteed Party further covenants, agrees and acknowledges that the only rights of recovery that the Guaranteed Party has in respect of the Merger Agreement
or the transaction contemplated thereby are its rights to recover from (x) Parent and Merger Sub and their respective successors and assigns under and to the extent expressly provided in the Merger Agreement, (y) Guarantor (but not any
Non-Recourse Party) and its successors and assigns under and to the extent expressly provided in this Limited Guarantee and subject to the Cap and the other limitations described herein and the Other Guarantors and their respective successors and
assigns pursuant to and subject to the limitations set forth in the Other Guarantees, and (z) the Guarantor and the Other Guarantors and their respective successors and assigns under the Equity Commitment Letters and the Other Equity Commitment
Letters, as applicable pursuant to and in accordance with the terms thereof (claims against (x), (y) and (z) collectively, the Retained Claims); provided that in the event the Guarantor transfers or conveys all or a substantial
portion of its properties and other assets to any person such that the sum of the Guarantors remaining net assets is less than the Cap, then, and in each such case, the Guaranteed Party may seek recourse, whether by the enforcement of any
judgment or assessment or by any legal or equitable proceeding or by virtue of any statue, regulation or other applicable Law, against such person, as the case may be, but only if the Guarantor fails to satisfy its payment obligations hereunder and
only to the extent of the liability of the Guarantor hereunder. The Guaranteed Party acknowledges and agrees that Parent and Merger Sub have no assets other than certain contract rights and cash in a de minimis amount and that no additional funds
are expected to be contributed to Parent or Merger Sub unless and until the conditions to Closing are satisfied or waived in accordance with the terms of the Merger Agreement. Recourse against the Guarantor under and pursuant to the terms of this
Limited Guarantee and against the Other Guarantors pursuant to the terms of their Other Guarantees and in each case, any applicable Equity Commitment Letter, shall be the sole and exclusive remedy of the Guaranteed Party and all of its affiliates
against the Guarantor and the Non-Recourse Parties in respect of any liabilities or obligations arising under, or in connection with, the Merger Agreement, the Equity Commitment Letters, the Other Equity Commitment Letters or the transactions
contemplated thereby, including by piercing of the corporate veil, by a claim on or behalf of Parent or Merger Sub. Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any person other than the
Guaranteed Party (including any person acting in a representative capacity) any rights or remedies against any person including Guarantor, except as expressly set forth herein.
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10. Governing Law; Jurisdiction. This Limited Guarantee shall be deemed to be made
in and in all respects shall be interpreted, construed and governed by and in accordance with the Law of the State of New York applicable to contracts executed in and to be performed therein without regard to the conflicts of law principles thereof.
The parties hereby irrevocably submit to the personal jurisdiction of the courts of the State of New York located in the Borough of Manhattan, and the federal courts of the United States of America located in the State of New York, Borough of
Manhattan, solely in respect of the interpretation and enforcement of the provisions of this Limited Guarantee, and hereby waive, and agree not to assert, as a defense in any action, suit or proceeding for the interpretation or enforcement hereof,
that it is not subject thereto or that such action, suit or proceeding may not be brought or is not maintainable in said courts or that the venue thereof may not be appropriate or that this Limited Guarantee may not be enforced in or by such courts,
and the parties hereto irrevocably agree that all claims with respect to such action or proceeding shall be heard and determined in such a New York State or federal court. The parties hereby consent to and grant any such court jurisdiction over the
person of such parties and, to the extent permitted by law, over the subject matter of such dispute and agree that mailing of process or other papers in connection with any such action or proceeding in the manner provided herein or in such other
manner as may be permitted by law shall be valid and sufficient service thereof.
11. Waiver of Jury Trial. Each party
acknowledges and agrees that any controversy which may arise under this Limited Guarantee is likely to involve complicated and difficult issues, and therefore each such party hereby irrevocably and unconditionally waives any right such party may
have to a trial by jury in respect of any litigation directly or indirectly arising out of or relating to this Limited Guarantee, or the transactions contemplated by this Limited Guarantee. Each party certifies and acknowledges that (i) no
representative, agent or attorney of any other party has represented, expressly or otherwise, that such other party would not, in the event of litigation, seek to enforce the foregoing waiver, (ii) each party understands and has considered the
implications of this waiver, (iii) each party makes this waiver voluntarily, and (iv) each party has been induced to enter into this Limited Guarantee by, among other things, the mutual waivers and certifications in this Section 11.
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12. Counterparts. This Limited Guarantee may be executed in any number of
counterparts (including by e-mail of PDF or scanned versions or by facsimile), each such counterpart when executed being deemed to be an original instrument, and all such counterparts shall together constitute one and the same agreement.
13. No Third Party Beneficiaries. Except as provided in Section 9, the parties hereby agree that their respective
representations, warranties and covenants set forth herein are solely for the benefit of the other party hereto, in accordance with and subject to the terms of this Limited Guarantee, and this Limited Guarantee is not intended to, and does not,
confer upon any person other than the parties hereto any rights or remedies hereunder, including, the right to rely upon the representations and warranties set forth herein.
14. Confidentiality. This Limited Guarantee shall be treated as confidential and is being provided to the Guaranteed Party
solely in connection with the Merger. This Limited Guarantee may not be used, circulated, quoted or otherwise referred to in any document, except with the written consent of the Guarantor; provided that the parties may disclose the existence and
content of this Limited Guarantee to the extent required by Law, the applicable rules of any national securities exchange or in connection with any SEC filings relating to the Merger and the Guarantor may disclose it to any Non-Recourse Party.
15. Miscellaneous.
(a) This Limited Guarantee and the Merger Agreement contain the entire agreement between the parties relative to the subject matter hereof and
supersede all prior agreements and undertakings between the parties with respect to the subject matter hereof. No modification or waiver of any provision hereof shall be enforceable unless approved by the Guaranteed Party and the Guarantor in
writing.
(b) Any term or provision hereof that is prohibited or unenforceable in any jurisdiction shall be, as to such jurisdiction,
ineffective solely to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction; provided, however, that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Cap provided in Section 1 hereof and the provisions of
Sections 8 and 9 and this Section 15(b).
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(c) The descriptive headings herein are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or interpretation of this Limited Guarantee.
(d) All parties acknowledge that each party
and its counsel have reviewed this Limited Guarantee and that any rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Limited Guarantee.
[Remainder of page intentionally left blank]
12
IN WITNESS WHEREOF, the Guarantor has caused this Limited Guarantee to be executed and delivered as of the date
first written above by its officer thereunto duly authorized.
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GUARANTOR |
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CHUANWEI ZHANG |
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By: |
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/s/ Chuanwei Zhang |
Name: |
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Title: |
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Signature Page to
Limited Guarantee
IN WITNESS WHEREOF, the Guaranteed Party has caused this Limited Guarantee to be executed and delivered as of the
date first written above by its officer thereunto duly authorized.
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GUARANTEED PARTY |
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CHINA MING YANG WIND POWER GROUP LIMITED |
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By: |
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/s/ Stephen Markscheid |
Name: |
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Stephen Markscheid |
Title: |
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Director |
Signature Page to
Limited Guarantee
SCHEDULE A
Other Guarantors
1. |
Shanghai Dajun Guancheng Capital Fund |
2. |
Guangzhou Huifu Kaile Investment (L.P.) |
SCHEDULE B
New Sponsor
1. |
Anhui Zhongan Xinzhao Private Equity Investment LLP |
Exhibit 99.4
Execution Version
LIMITED GUARANTEE
LIMITED
GUARANTEE, dated as of February 2, 2016 (this Limited Guarantee), by Shanghai Dajun Guancheng Capital Fund
(the Guarantor) in favor of China Ming Yang Wind Power Group Limited (the Guaranteed Party).
1. Guarantee.
(a) To induce the Guaranteed Party to enter into that certain Agreement and Plan of Merger, dated as of February 2, 2016 (as amended,
restated, supplemented or otherwise modified from time to time, the Merger Agreement) by and among the Guaranteed Party, Zhongshan Ruisheng Antai Investment Co., Ltd
, a limited liability company incorporated under the laws of the Peoples Republic of China (Holdco), Regal Concord Limited, an exempted company with limited liability incorporated under the laws of the
British Virgin Islands and a wholly-owned subsidiary of Holdco (Parent), and Regal Ally Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands and a wholly-owned subsidiary of Parent
(Merger Sub), pursuant to which Merger Sub will merge with and into the Guaranteed Party (the Merger), the Guarantor, intending to be legally bound, hereby absolutely, irrevocably and unconditionally guarantees to the
Guaranteed Party, as a primary obligor and not merely as surety to the Company, on the terms and conditions set forth herein, the due and punctual payment when due of 24.41% (the Guaranteed Percentage) of the payment obligations of
Parent with respect to the Parent Termination Fee pursuant to Section 8.03(c) and 8.03(d) of the Merger Agreement and subject to the terms and limitations of Section 8.04 of the Merger Agreement in accordance with the terms thereof (as
such obligations, covenants and agreements may be modified, amended, waived or terminated in accordance with the terms of the Merger Agreement, the Obligations), provided that in no event shall the Guarantors aggregate liability
under this Limited Guarantee exceed US$ 2,929,134 (the Cap), it being understood that this Limited Guarantee may not be enforced against the Guarantor without giving effect to the Cap. The Guaranteed Party hereby agrees that in no event
shall the Guarantor be required to pay to any person under, in respect of, or in connection with this Limited Guarantee, more than the Cap, and that Guarantor shall not have any obligation or liability to any person relating to, arising out of or in
connection with this Limited Guarantee or the Merger Agreement other than as expressly set forth herein. The Guaranteed Party further acknowledges that in the event that Parent or Merger Sub has any unsatisfied Obligations, payment of the Guaranteed
Percentage of such unsatisfied Obligations by Guarantor (or by any other person, including Parent or Merger Sub, on behalf of Guarantor) shall constitute satisfaction in full of Guarantors obligation with respect thereto. All payments
hereunder shall be made in lawful money of the United States, in immediately available funds. The Guarantor acknowledges that the Guaranteed Party entered into the transactions contemplated by the Merger Agreement partly in reliance upon the
execution of this Limited Guarantee. Concurrently with the delivery of this Limited Guarantee, the parties set forth on Schedule A (each an Other Guarantor) are also entering into limited guarantees substantially identical to this
Limited Guarantee (each, an Other Guarantee) with the Guaranteed Party. Each capitalized term used and not defined herein shall have the meaning ascribed to it in the Merger Agreement, except as otherwise provided.
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(b) The Guarantor promises and undertakes to make all payments hereunder free and clear of any
deduction, offset, defense, claim or counterclaim of any kind. If Parent or Merger Sub fails to pay the Obligations as and when due pursuant to Section 8.03(c) of the Merger Agreement, as applicable, then the Guarantors liabilities to the
Guaranteed Party hereunder in respect of such Obligations shall, at the Guaranteed Partys option, become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Partys option, and so
long as Parent or Merger Sub remains in breach of its Obligations, take any and all actions available hereunder or under applicable law to collect the Obligations from the Guarantor subject to the Cap.
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of
counsel) incurred by the Guaranteed Party in connection with the enforceability and enforcement of its rights hereunder if (i) the Guarantor asserts in any arbitration, litigation, or other proceeding that this Limited Guarantee is illegal,
invalid or unenforceable in accordance with its terms, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable.
(d) In furtherance of the foregoing the Guarantor acknowledges that the Guaranteed Party may, in its sole discretion, bring and prosecute a
separate action or actions against the Guarantor for the full amount of the Guarantors Guaranteed Percentage of the Obligations (subject to the Cap), regardless of whether action is brought against any other person (including Parent, Merger
Sub or any Other Guarantor) or whether any such person is joined in any such action or actions.
2
2. Nature of Guarantee. The Guarantors liability hereunder is absolute,
unconditional, irrevocable and continuing irrespective of any modification, amendment or waiver of or any consent to departure from the Merger Agreement that may be agreed to by Parent or Merger Sub. Without limiting the foregoing, the Guaranteed
Party shall not be obligated to file any claim relating to the Obligations in the event that Parent or Merger Sub becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not
affect the Guarantors obligations hereunder. In the event that any payment to the Guaranteed Party in respect of the Obligations is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder
with respect to its Guaranteed Percentage of the Obligations (subject to the Cap) as if such payment had not been made by the Guarantor. This Limited Guarantee is an unconditional guarantee of payment and not of collection. This Limited Guarantee is
a primary obligation of the Guarantor (subject to the Cap) and is not merely the creation of a surety relationship, and the Guaranteed Party shall not be required to proceed against Parent or Merger Sub first before proceeding against the Guarantor
hereunder.
3. Changes in Obligations, Certain Waivers.
(a) The Guarantor agrees that the Guaranteed Party may at any time and from time to time, without notice to or further consent of the
Guarantor, extend the time of payment of any of the Obligations, and may also make any agreement with Parent or Merger Sub for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of
the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person thereof without in any way impairing or affecting the Guarantors obligations under this Limited Guarantee. The Guarantor agrees that
the obligations of Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or
remedy against Parent, Merger Sub or any Other Guarantor; (ii) any change in the time, place or manner of payment of any of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the
terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any of the Obligations; (iii) the addition, substitution or release of any
person now or hereafter liable with respect to any of the Obligations or otherwise interested in the transactions contemplated by the Merger Agreement (including any Other Guarantor); (iv) any change in the corporate existence, structure or
ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any of the Obligations or otherwise interested in the transactions contemplated by the Merger Agreement (including any Other Guarantor); (v) any
insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any of the Obligations or otherwise interested in the transactions contemplated by the Merger
Agreement (including any Other Guarantor); (vi) except as provided herein, the existence of any claim, set-off or other right which the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection
with the Obligations or otherwise; (vii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations; (viii) any other act or omission that may in any manner or to any extent vary the risk
of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with
their terms); or (ix) the value, genuineness, validity, regularity, illegality or enforceability of the Merger Agreement.
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(b) To the fullest extent permitted by Law the Guarantor hereby expressly waives any and all
rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations,
presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any Obligations incurred and all other notices of any kind (other than notices expressly required to be provided to Parent or Merger Sub pursuant to
the Merger Agreement or notices expressly required to be provided pursuant to this Limited Guarantee), all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to
require the marshalling of assets of Parent or Merger Sub or any other person interested in the transactions contemplated by the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the
payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits
from the transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and
affiliates not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the transactions contemplated thereby or the Equity Commitment Letter between the Guarantor and
Holdco (the Equity Commitment Letter), against the Guarantor or any Non-Recourse Party (as defined in Section 9 herein), except, with respect to the Guarantor or any particular Non-Recourse Party, as the case may be, for Retained
Claims (as defined in Section 9 herein) arising under, or in connection with, the Merger Agreement, the transactions contemplated thereby or such Equity Commitment Letter to which the Guarantor or such Non-Recourse Party is a party, as the case
may be. The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its affiliates not to institute, any proceeding asserting that this Limited Guarantee is illegal, invalid or unenforceable in
accordance with its terms.
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(d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any
rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantors obligations under or in respect of this Limited Guarantee or any other
agreement in connection therewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent or
Merger Sub or such other person (including any Other Guarantor), whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including, without limitation, the right to take or receive from Parent or Merger
Sub or such other person (including any Other Guarantor), directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations
and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment
in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property
and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable
under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for any Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited
Guarantee but subject to subsection (v) under Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the
Guarantor shall be similarly relieved of its obligations under this Limited Guarantee, and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the
Guarantors Cap) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the Obligations.
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4. No Waiver; Cumulative Rights. No failure on the part of the Guaranteed Party to
exercise, and no delay in exercising, any right, remedy or power hereunder shall operate as a waiver thereof; nor shall any single or partial exercise by the Guaranteed Party of any right, remedy or power hereunder preclude any other or future
exercise of any right, remedy or power hereunder. Each and every right, remedy and power hereby granted to or otherwise available to the Guaranteed Party shall be cumulative and not exclusive of any other, and may be exercised by the Guaranteed
Party at any time or from time to time. The Guaranteed Party shall not have any obligation to proceed at any time or in any manner against, or exhaust any or all of the Guaranteed Partys rights against, the Parent or any other person
(including any Other Guarantor) liable for any Obligations prior to proceeding against the Guarantor hereunder.
5. Representations
and Warranties. The Guarantor hereby represents and warrants that:
(a) (i) it is duly organized, validly existing and in
good standing under the laws of the jurisdiction in which it is formed and has all requisite power and authority to execute, deliver and perform this Limited Guarantee and (ii) the execution, delivery and performance of this Limited Guarantee
have been duly authorized by all necessary action and do not contravene any provision of the Guarantors charter, partnership agreement, operating agreement or similar organizational documents or any applicable provision of any material Law or
result in any breach of any material contractual restriction binding on the Guarantor or its assets (other than any such breach that is not reasonably likely to impair or delay the Guarantors performance of its obligations in any material
respect);
(b) except as is not, individually or in the aggregate, reasonably likely to impair or delay the Guarantors performance
of its obligations in any material respect, all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the
Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution,
delivery or performance of this Limited Guarantee; and
(c) assuming due execution and delivery of this Limited Guarantee and the Merger
Agreement by the Guaranteed Party, this Limited Guarantee constitutes a legal, valid and binding obligation of the Guarantor enforceable against the Guarantor in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar Laws affecting creditors rights generally, and (ii) general equitable principles (whether considered in a proceeding in equity or at Law).
(d) the Guarantor has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the
Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 8 hereof.
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6. No Assignment. Neither the Guarantor nor the Guaranteed Party may assign or
delegate its rights, interests or obligations hereunder to any other person, in whole or in part, (except by operation of Law) without the prior written consent of the other party hereto; provided, however, that the Guarantor can
assign its rights, interests and obligations hereunder, in whole or in part, without the prior written consent of the Guaranteed Party, (x) to any Other Guarantor or affiliated entity (including any affiliate or one or more private equity funds
sponsored or managed by any such affiliate), or (y) to a new private equity fund formed after the date hereof, sponsored by an affiliate of the Guarantor. Any attempted assignment in violation of this Section 6 shall be null and void.
7. Notices. All notices, requests, claims, demands and other communications hereunder shall be given by the means specified in
the Merger Agreement (and shall be deemed given as specified therein), as follows:
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if to the Guarantor, to: |
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Shanghai Dajun Guancheng Capital Fund
1601 Taikang International Building, No. 2 Wudinghou Street,
Xicheng District, Beijing P.R. China |
Attention: |
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Qiaoning Chen |
Facsimile: |
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+86 (010) 5608-6961 |
Email: |
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chenqiaoning@greatwheel.com.cn |
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with a copy to: |
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Simpson Thacher & Bartlett
35/F ICBC Tower 3 Garden Road
Central, Hong Kong |
Attention: |
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Leiming Chen, Esq. |
Facsimile: |
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+ (852) 2869-7694 |
Email: |
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lchen@stblaw.com |
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If to the Guaranteed Party, as provided in the Merger Agreement. |
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8. Continuing Guarantee.
(a) This Limited Guarantee may not be revoked or terminated and shall remain in full force and effect and shall be binding on the Guarantor,
its successors and assigns until all of the Obligations payable under the Limited Guarantee have been paid in full. Notwithstanding the foregoing, this Limited Guarantee shall terminate and the Guarantor shall have no further obligations under this
Limited Guarantee as of the earliest of (i) the Effective Time, (ii) the termination of the Merger Agreement in accordance with its terms by mutual consent of Parent and the Guaranteed Party or under circumstances in which Parent and
Merger Sub would not be obligated to pay the Parent Termination Fee or otherwise to make payments pursuant to the Merger Agreement, (iii) the first anniversary of the date hereof, and (iv) 60 days after any termination of the Merger
Agreement in accordance with its terms under circumstances in which Parent and/or Merger Sub would be obligated to pay Parent Termination Fee or otherwise to make payments pursuant to the Merger Agreement if the Guaranteed Party has not presented a
claim for payment of any Obligation to the Guarantor by such 60th day, provided, that such claim shall set forth in reasonable detail the basis for such claim.
(b) Notwithstanding the foregoing, in the event that the Guaranteed Party or any of its affiliates asserts in any litigation or other
proceeding relating to this Limited Guarantee that the provisions of Section 1 hereof limiting the Guarantors maximum aggregate liability to the Cap or that any other provisions of this Limited Guarantee are illegal, invalid or
unenforceable in whole or in part, asserts that the Guarantor is liable in excess of or to a greater extent than its Guaranteed Percentage of any Obligation, or asserts any theory of liability against the Guarantor or any Non-Recourse Parties (as
defined below) with respect to the Merger Agreement, the Equity Commitment Letters or the transactions contemplated by the Merger Agreement other than the Retained Claims (as defined below) and the liability of the Guarantor under this Limited
Guarantee (as limited by the provisions hereof, including Section 1), then (i) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and shall thereupon be null and void, (ii) if the Guarantor has
previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party, and (iii) neither the Guarantor nor any Non-Recourse Parties (as defined below) shall have any liability to the
Guaranteed Party or any of its affiliates with respect to the Merger Agreement, the Equity Commitment Letters, the transactions contemplated by the Merger Agreement or under this Limited Guarantee.
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9. No Recourse. Notwithstanding anything that may be expressed or implied in this
Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party covenants, agrees and acknowledges that no person other than Guarantor has any
obligations hereunder and that, notwithstanding that Guarantor may be a partnership or limited liability company, the Guaranteed Party has no right of recovery under this Limited Guarantee or in any document or instrument delivered in connection
herewith, or for any claim based on, in respect of, or by reason of, such obligations or their creation, against, and no personal liability shall attach to, the former, current or future equity holders, controlling persons, directors, officers,
employees, agents, advisors, representatives, affiliates (other than any assignee under Section 6), members, managers, or general or limited partners of any of Guarantor, Parent, Merger Sub or any Other Guarantor, or any former, current or
future stockholder, controlling person, director, officer, employee, general or limited partner, member, manager, affiliate (other than any assignee under Section 6), agent, advisor, or representative of any of the foregoing (collectively, but
not including Guarantor, Parent, Merger Sub or the Other Guarantors or their respective successors and assigns under the Merger Agreement, the Equity Commitment Letters, the Other Equity Commitment Letters (as defined in the Equity Commitment
Letters), this Limited Guarantee or the Other Guarantees, collectively, each a Non-Recourse Party), through Parent, Merger Sub or otherwise, whether by or through attempted piercing of the corporate veil, by or through a claim by or on
behalf of Parent or Merger Sub against any Non-Recourse Party (including any claim to enforce the Equity Commitment Letters or the Other Equity Commitment Letters), by the enforcement of any assessment or by any legal or equitable proceeding, by
virtue of any statute, regulation or applicable Law, or otherwise, and the Guaranteed Party further covenants, agrees and acknowledges that the only rights of recovery that the Guaranteed Party has in respect of the Merger Agreement or the
transaction contemplated thereby are its rights to recover from (x) Parent and Merger Sub and their respective successors and assigns under and to the extent expressly provided in the Merger Agreement, (y) Guarantor (but not any
Non-Recourse Party) and its successors and assigns under and to the extent expressly provided in this Limited Guarantee and subject to the Cap and the other limitations described herein and the Other Guarantors and their respective successors and
assigns pursuant to and subject to the limitations set forth in the Other Guarantees, and (z) the Guarantor and the Other Guarantors and their respective successors and assigns under the Equity Commitment Letters and the Other Equity Commitment
Letters, as applicable pursuant to and in accordance with the terms thereof (claims against (x), (y) and (z) collectively, the Retained Claims); provided that in the event the Guarantor (i) consolidates with or merges with
any other person and is not the continuing or surviving entity of such consolidation or merger or (ii) transfers or conveys all or a substantial portion of its properties and other assets to any person such that the sum of the Guarantors
remaining net assets plus uncalled capital is less than the Cap, then, and in each such case, the Guaranteed Party may seek recourse, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of
any statue, regulation or other applicable Law, against such continuing or surviving entity or such person, as the case may be, but only if the Guarantor fails to satisfy its payment obligations hereunder and only to the extent of the liability of
the Guarantor hereunder. The Guaranteed Party acknowledges and agrees that Parent and Merger Sub have no assets other than certain contract rights and cash in a de minimis amount and that no additional funds are expected to be contributed to Parent
or Merger Sub unless and until the conditions to Closing are satisfied or waived in accordance with the terms of the Merger Agreement. Recourse against the Guarantor under and pursuant to the terms of this Limited Guarantee and against the Other
Guarantors pursuant to the terms of their Other Guarantees and in each case, any applicable Equity Commitment Letter, shall be the sole and exclusive remedy of the Guaranteed Party and all of its affiliates against the Guarantor and the Non-Recourse
Parties in respect of any liabilities or obligations arising under, or in connection with, the Merger Agreement, the Equity Commitment Letters, the Other Equity Commitment Letters or the transactions contemplated thereby, including by piercing of
the corporate veil, by a claim on or behalf of Parent or Merger Sub. Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any person other than the Guaranteed Party (including any person acting
in a representative capacity) any rights or remedies against any person including Guarantor, except as expressly set forth herein.
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10. Governing Law; Jurisdiction. This Limited Guarantee shall be deemed to be made
in and in all respects shall be interpreted, construed and governed by and in accordance with the Law of the State of New York applicable to contracts executed in and to be performed therein without regard to the conflicts of law principles thereof.
The parties hereby irrevocably submit to the personal jurisdiction of the courts of the State of New York located in the Borough of Manhattan, and the federal courts of the United States of America located in the State of New York, Borough of
Manhattan, solely in respect of the interpretation and enforcement of the provisions of this Limited Guarantee, and hereby waive, and agree not to assert, as a defense in any action, suit or proceeding for the interpretation or enforcement hereof,
that it is not subject thereto or that such action, suit or proceeding may not be brought or is not maintainable in said courts or that the venue thereof may not be appropriate or that this Limited Guarantee may not be enforced in or by such courts,
and the parties hereto irrevocably agree that all claims with respect to such action or proceeding shall be heard and determined in such a New York State or federal court. The parties hereby consent to and grant any such court jurisdiction over the
person of such parties and, to the extent permitted by law, over the subject matter of such dispute and agree that mailing of process or other papers in connection with any such action or proceeding in the manner provided herein or in such other
manner as may be permitted by law shall be valid and sufficient service thereof.
11. Waiver of Jury Trial. Each party
acknowledges and agrees that any controversy which may arise under this Limited Guarantee is likely to involve complicated and difficult issues, and therefore each such party hereby irrevocably and unconditionally waives any right such party may
have to a trial by jury in respect of any litigation directly or indirectly arising out of or relating to this Limited Guarantee, or the transactions contemplated by this Limited Guarantee. Each party certifies and acknowledges that (i) no
representative, agent or attorney of any other party has represented, expressly or otherwise, that such other party would not, in the event of litigation, seek to enforce the foregoing waiver, (ii) each party understands and has considered the
implications of this waiver, (iii) each party makes this waiver voluntarily, and (iv) each party has been induced to enter into this Limited Guarantee by, among other things, the mutual waivers and certifications in this Section 11.
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12. Counterparts. This Limited Guarantee may be executed in any number of
counterparts (including by e-mail of PDF or scanned versions or by facsimile), each such counterpart when executed being deemed to be an original instrument, and all such counterparts shall together constitute one and the same agreement.
13. No Third Party Beneficiaries. Except as provided in Section 9, the parties hereby agree that their respective
representations, warranties and covenants set forth herein are solely for the benefit of the other party hereto, in accordance with and subject to the terms of this Limited Guarantee, and this Limited Guarantee is not intended to, and does not,
confer upon any person other than the parties hereto any rights or remedies hereunder, including, the right to rely upon the representations and warranties set forth herein.
14. Confidentiality. This Limited Guarantee shall be treated as confidential and is being provided to the Guaranteed Party
solely in connection with the Merger. This Limited Guarantee may not be used, circulated, quoted or otherwise referred to in any document, except with the written consent of the Guarantor; provided that the parties may disclose the existence and
content of this Limited Guarantee to the extent required by Law, the applicable rules of any national securities exchange or in connection with any SEC filings relating to the Merger and the Guarantor may disclose it to any Non-Recourse Party.
15. Miscellaneous.
(a) This Limited Guarantee and the Merger Agreement contain the entire agreement between the parties relative to the subject matter hereof and
supersede all prior agreements and undertakings between the parties with respect to the subject matter hereof. No modification or waiver of any provision hereof shall be enforceable unless approved by the Guaranteed Party and the Guarantor in
writing.
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(b) Any term or provision hereof that is prohibited or unenforceable in any jurisdiction shall
be, as to such jurisdiction, ineffective solely to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction; provided, however, that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Cap provided in Section 1 hereof
and the provisions of Sections 8 and 9 and this Section 15(b).
(c) The descriptive headings herein are inserted for convenience of
reference only and are not intended to be part of or to affect the meaning or interpretation of this Limited Guarantee.
(d) All parties
acknowledge that each party and its counsel have reviewed this Limited Guarantee and that any rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this
Limited Guarantee.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the Guarantor has caused this Limited Guarantee to be executed and delivered as of the date
first written above by its officer thereunto duly authorized.
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GUARANTOR |
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Shanghai Dajun Guancheng Capital Fund |
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By: |
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/s/ Hu Xiang |
Name: |
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Hu Xiang |
Title: |
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Authorized Signatory |
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[affixed with the company seal of Shanghai Dajun Guancheng Capital Fund] |
Signature Page to
Limited Guarantee
IN WITNESS WHEREOF, the Guaranteed Party has caused this Limited Guarantee to be executed and delivered as of the
date first written above by its officer thereunto duly authorized.
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GUARANTEED PARTY |
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CHINA MING YANG WIND POWER GROUP LIMITED |
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By: |
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/s/ Stephen Markscheid |
Name: |
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Stephen Markscheid |
Title: |
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Director |
Signature Page to
Limited Guarantee
SCHEDULE A
Other Guarantors
1. |
Guangzhou Huifu Kaile Investment (L.P.) |
Exhibit 99.5
Execution Version
LIMITED GUARANTEE
LIMITED
GUARANTEE, dated as of February 2, 2016 (this Limited Guarantee), by Guangzhou Huifu Kaile Investment (L.P.)
(the Guarantor) in favor of China Ming Yang Wind Power Group Limited (the Guaranteed Party).
1. Guarantee.
(a) To induce the Guaranteed Party to enter into that certain Agreement and Plan of Merger, dated as of February 2, 2016 (as amended,
restated, supplemented or otherwise modified from time to time, the Merger Agreement) by and among the Guaranteed Party, Zhongshan Ruisheng Antai Investment Co., Ltd
, a limited liability company incorporated under the laws of the Peoples Republic of China (Holdco), Regal Concord Limited, an exempted company with limited liability incorporated under the laws of the
British Virgin Islands and a wholly-owned subsidiary of Holdco (Parent), and Regal Ally Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands and a wholly-owned subsidiary of Parent
(Merger Sub), pursuant to which Merger Sub will merge with and into the Guaranteed Party (the Merger), the Guarantor, intending to be legally bound, hereby absolutely, irrevocably and unconditionally guarantees to the
Guaranteed Party, as a primary obligor and not merely as surety to the Company, on the terms and conditions set forth herein, the due and punctual payment when due of 24.41% (the Guaranteed Percentage) of the payment obligations of
Parent with respect to the Parent Termination Fee pursuant to Section 8.03(c) and 8.03(d) of the Merger Agreement and subject to the terms and limitations of Section 8.04 of the Merger Agreement in accordance with the terms thereof (as
such obligations, covenants and agreements may be modified, amended, waived or terminated in accordance with the terms of the Merger Agreement, the Obligations), provided that in no event shall the Guarantors aggregate liability
under this Limited Guarantee exceed US$ 2,929,134 (the Cap), it being understood that this Limited Guarantee may not be enforced against the Guarantor without giving effect to the Cap. The Guaranteed Party hereby agrees that in no event
shall the Guarantor be required to pay to any person under, in respect of, or in connection with this Limited Guarantee, more than the Cap, and that Guarantor shall not have any obligation or liability to any person relating to, arising out of or in
connection with this Limited Guarantee or the Merger Agreement other than as expressly set forth herein. The Guaranteed Party further acknowledges that in the event that Parent or Merger Sub has any unsatisfied Obligations, payment of the Guaranteed
Percentage of such unsatisfied Obligations by Guarantor (or by any other person, including Parent or Merger Sub, on behalf of Guarantor) shall constitute satisfaction in full of Guarantors obligation with respect thereto. All payments
hereunder shall be made in lawful money of the United States, in immediately available funds. The Guarantor acknowledges that the Guaranteed Party entered into the transactions contemplated by the Merger Agreement partly in reliance upon the
execution of this Limited Guarantee. Concurrently with the delivery of this Limited Guarantee, the parties set forth on Schedule A (each an Other Guarantor) are also entering into limited guarantees substantially identical to this
Limited Guarantee (each, an Other Guarantee) with the Guaranteed Party. Each capitalized term used and not defined herein shall have the meaning ascribed to it in the Merger Agreement, except as otherwise provided.
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(b) The Guarantor promises and undertakes to make all payments hereunder free and clear of any
deduction, offset, defense, claim or counterclaim of any kind. If Parent or Merger Sub fails to pay the Obligations as and when due pursuant to Section 8.03(c) of the Merger Agreement, as applicable, then the Guarantors liabilities to the
Guaranteed Party hereunder in respect of such Obligations shall, at the Guaranteed Partys option, become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Partys option, and so
long as Parent or Merger Sub remains in breach of its Obligations, take any and all actions available hereunder or under applicable law to collect the Obligations from the Guarantor subject to the Cap.
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of
counsel) incurred by the Guaranteed Party in connection with the enforceability and enforcement of its rights hereunder if (i) the Guarantor asserts in any arbitration, litigation, or other proceeding that this Limited Guarantee is illegal,
invalid or unenforceable in accordance with its terms, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable.
(d) In furtherance of the foregoing the Guarantor acknowledges that the Guaranteed Party may, in its sole discretion, bring and prosecute a
separate action or actions against the Guarantor for the full amount of the Guarantors Guaranteed Percentage of the Obligations (subject to the Cap), regardless of whether action is brought against any other person (including Parent, Merger
Sub or any Other Guarantor) or whether any such person is joined in any such action or actions.
2. Nature of Guarantee. The
Guarantors liability hereunder is absolute, unconditional, irrevocable and continuing irrespective of any modification, amendment or waiver of or any consent to departure from the Merger Agreement that may be agreed to by Parent or Merger Sub.
Without limiting the foregoing, the Guaranteed Party shall not be obligated to file any claim relating to the Obligations in the event that Parent or Merger Sub becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure
of the Guaranteed Party to so file shall not affect the Guarantors obligations hereunder. In the event that any payment to the Guaranteed Party in respect of the Obligations is rescinded or must otherwise be returned for any reason whatsoever,
the Guarantor shall remain liable hereunder with respect to its Guaranteed Percentage of the Obligations (subject to the Cap) as if such payment had not been made by the Guarantor. This Limited Guarantee is an unconditional guarantee of payment and
not of collection. This Limited Guarantee is a primary obligation of the Guarantor (subject to the Cap) and is not merely the creation of a surety relationship, and the Guaranteed Party shall not be required to proceed against Parent or Merger Sub
first before proceeding against the Guarantor hereunder.
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3. Changes in Obligations, Certain Waivers.
(a) The Guarantor agrees that the Guaranteed Party may at any time and from time to time, without notice to or further consent of the
Guarantor, extend the time of payment of any of the Obligations, and may also make any agreement with Parent or Merger Sub for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of
the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person thereof without in any way impairing or affecting the Guarantors obligations under this Limited Guarantee. The Guarantor agrees that
the obligations of Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or
remedy against Parent, Merger Sub or any Other Guarantor; (ii) any change in the time, place or manner of payment of any of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the
terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any of the Obligations; (iii) the addition, substitution or release of any
person now or hereafter liable with respect to any of the Obligations or otherwise interested in the transactions contemplated by the Merger Agreement (including any Other Guarantor); (iv) any change in the corporate existence, structure or
ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any of the Obligations or otherwise interested in the transactions contemplated by the Merger Agreement (including any Other Guarantor); (v) any
insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any of the Obligations or otherwise interested in the transactions contemplated by the Merger
Agreement (including any Other Guarantor); (vi) except as provided herein, the existence of any claim, set-off or other right which the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection
with the Obligations or otherwise; (vii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations; (viii) any other act or omission that may in any manner or to any extent vary the risk
of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with
their terms); or (ix) the value, genuineness, validity, regularity, illegality or enforceability of the Merger Agreement.
3
(b) To the fullest extent permitted by Law the Guarantor hereby expressly waives any and all
rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations,
presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any Obligations incurred and all other notices of any kind (other than notices expressly required to be provided to Parent or Merger Sub pursuant to
the Merger Agreement or notices expressly required to be provided pursuant to this Limited Guarantee), all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to
require the marshalling of assets of Parent or Merger Sub or any other person interested in the transactions contemplated by the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the
payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits
from the transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and
affiliates not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the transactions contemplated thereby or the Equity Commitment Letter between the Guarantor and
Holdco (the Equity Commitment Letter), against the Guarantor or any Non-Recourse Party (as defined in Section 9 herein), except, with respect to the Guarantor or any particular Non-Recourse Party, as the case may be, for Retained
Claims (as defined in Section 9 herein) arising under, or in connection with, the Merger Agreement, the transactions contemplated thereby or such Equity Commitment Letter to which the Guarantor or such Non-Recourse Party is a party, as the case
may be. The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its affiliates not to institute, any proceeding asserting that this Limited Guarantee is illegal, invalid or unenforceable in
accordance with its terms.
4
(d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any
rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantors obligations under or in respect of this Limited Guarantee or any other
agreement in connection therewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent or
Merger Sub or such other person (including any Other Guarantor), whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including, without limitation, the right to take or receive from Parent or Merger
Sub or such other person (including any Other Guarantor), directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations
and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment
in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property
and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable
under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for any Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited
Guarantee but subject to subsection (v) under Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the
Guarantor shall be similarly relieved of its obligations under this Limited Guarantee, and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the
Guarantors Cap) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the Obligations.
4. No Waiver; Cumulative Rights. No failure on the part of the Guaranteed Party to exercise, and no delay in exercising, any
right, remedy or power hereunder shall operate as a waiver thereof; nor shall any single or partial exercise by the Guaranteed Party of any right, remedy or power hereunder preclude any other or future exercise of any right, remedy or power
hereunder. Each and every right, remedy and power hereby granted to or otherwise available to the Guaranteed Party shall be cumulative and not exclusive of any other, and may be exercised by the Guaranteed Party at any time or from time to time. The
Guaranteed Party shall not have any obligation to proceed at any time or in any manner against, or exhaust any or all of the Guaranteed Partys rights against, the Parent or any other person (including any Other Guarantor) liable for any
Obligations prior to proceeding against the Guarantor hereunder.
5
5. Representations and Warranties. The Guarantor hereby represents and warrants
that:
(a) (i) it is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is formed
and has all requisite power and authority to execute, deliver and perform this Limited Guarantee and (ii) the execution, delivery and performance of this Limited Guarantee have been duly authorized by all necessary action and do not contravene
any provision of the Guarantors charter, partnership agreement, operating agreement or similar organizational documents or any applicable provision of any material Law or result in any breach of any material contractual restriction binding on
the Guarantor or its assets (other than any such breach that is not reasonably likely to impair or delay the Guarantors performance of its obligations in any material respect);
(b) except as is not, individually or in the aggregate, reasonably likely to impair or delay the Guarantors performance of its
obligations in any material respect, all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the
Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution,
delivery or performance of this Limited Guarantee; and
(c) assuming due execution and delivery of this Limited Guarantee and the Merger
Agreement by the Guaranteed Party, this Limited Guarantee constitutes a legal, valid and binding obligation of the Guarantor enforceable against the Guarantor in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar Laws affecting creditors rights generally, and (ii) general equitable principles (whether considered in a proceeding in equity or at Law).
(d) the Guarantor has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the
Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 8 hereof.
6
6. No Assignment. Neither the Guarantor nor the Guaranteed Party may assign or
delegate its rights, interests or obligations hereunder to any other person, in whole or in part, (except by operation of Law) without the prior written consent of the other party hereto; provided, however, that the Guarantor can
assign its rights, interests and obligations hereunder, in whole or in part, without the prior written consent of the Guaranteed Party, (x) to any Other Guarantor or affiliated entity (including any affiliate or one or more private equity funds
sponsored or managed by any such affiliate), or (y) to a new private equity fund formed after the date hereof, sponsored by an affiliate of the Guarantor. Any attempted assignment in violation of this Section 6 shall be null and void.
7. Notices. All notices, requests, claims, demands and other communications hereunder shall be given by the means specified in
the Merger Agreement (and shall be deemed given as specified therein), as follows:
if to the Guarantor, to:
|
|
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Guangzhou HYAF Fund Management Ltd. Company |
Rm. 5205, International Finance Centre |
Zhujiang West Rd., Zhujiang New Town |
Guangzhou, P.R. China |
Attention: |
|
Jessie Wu |
Facsimile: |
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+86 (020) 2338-8627 |
Email: |
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jswu@sfund.com |
with a copy to:
|
|
|
Simpson Thacher & Bartlett |
35/F ICBC Tower |
3 Garden Road |
Central, Hong Kong |
Attention: |
|
Leiming Chen, Esq. |
Facsimile: |
|
+ (852) 2869-7694 |
Email: |
|
lchen@stblaw.com |
If to the Guaranteed Party, as provided in the Merger Agreement.
7
8. Continuing Guarantee.
(a) This Limited Guarantee may not be revoked or terminated and shall remain in full force and effect and shall be binding on the Guarantor,
its successors and assigns until all of the Obligations payable under the Limited Guarantee have been paid in full. Notwithstanding the foregoing, this Limited Guarantee shall terminate and the Guarantor shall have no further obligations under this
Limited Guarantee as of the earliest of (i) the Effective Time, (ii) the termination of the Merger Agreement in accordance with its terms by mutual consent of Parent and the Guaranteed Party or under circumstances in which Parent and
Merger Sub would not be obligated to pay the Parent Termination Fee or otherwise to make payments pursuant to the Merger Agreement, (iii) the first anniversary of the date hereof, and (iv) 60 days after any termination of the Merger
Agreement in accordance with its terms under circumstances in which Parent and/or Merger Sub would be obligated to pay Parent Termination Fee or otherwise to make payments pursuant to the Merger Agreement if the Guaranteed Party has not presented a
claim for payment of any Obligation to the Guarantor by such 60th day, provided, that such claim shall set forth in reasonable detail the basis for such claim.
(b) Notwithstanding the foregoing, in the event that the Guaranteed Party or any of its affiliates asserts in any litigation or other
proceeding relating to this Limited Guarantee that the provisions of Section 1 hereof limiting the Guarantors maximum aggregate liability to the Cap or that any other provisions of this Limited Guarantee are illegal, invalid or
unenforceable in whole or in part, asserts that the Guarantor is liable in excess of or to a greater extent than its Guaranteed Percentage of any Obligation, or asserts any theory of liability against the Guarantor or any Non-Recourse Parties (as
defined below) with respect to the Merger Agreement, the Equity Commitment Letters or the transactions contemplated by the Merger Agreement other than the Retained Claims (as defined below) and the liability of the Guarantor under this Limited
Guarantee (as limited by the provisions hereof, including Section 1), then (i) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and shall thereupon be null and void, (ii) if the Guarantor has
previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party, and (iii) neither the Guarantor nor any Non-Recourse Parties (as defined below) shall have any liability to the
Guaranteed Party or any of its affiliates with respect to the Merger Agreement, the Equity Commitment Letters, the transactions contemplated by the Merger Agreement or under this Limited Guarantee.
8
9. No Recourse. Notwithstanding anything that may be expressed or implied in this
Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party covenants, agrees and acknowledges that no person other than Guarantor has any
obligations hereunder and that, notwithstanding that Guarantor may be a partnership or limited liability company, the Guaranteed Party has no right of recovery under this Limited Guarantee or in any document or instrument delivered in connection
herewith, or for any claim based on, in respect of, or by reason of, such obligations or their creation, against, and no personal liability shall attach to, the former, current or future equity holders, controlling persons, directors, officers,
employees, agents, advisors, representatives, affiliates (other than any assignee under Section 6), members, managers, or general or limited partners of any of Guarantor, Parent, Merger Sub or any Other Guarantor, or any former, current or
future stockholder, controlling person, director, officer, employee, general or limited partner, member, manager, affiliate (other than any assignee under Section 6), agent, advisor, or representative of any of the foregoing (collectively, but
not including Guarantor, Parent, Merger Sub or the Other Guarantors or their respective successors and assigns under the Merger Agreement, the Equity Commitment Letters, the Other Equity Commitment Letters (as defined in the Equity Commitment
Letters), this Limited Guarantee or the Other Guarantees, collectively, each a Non-Recourse Party), through Parent, Merger Sub or otherwise, whether by or through attempted piercing of the corporate veil, by or through a claim by or on
behalf of Parent or Merger Sub against any Non-Recourse Party (including any claim to enforce the Equity Commitment Letters or the Other Equity Commitment Letters), by the enforcement of any assessment or by any legal or equitable proceeding, by
virtue of any statute, regulation or applicable Law, or otherwise, and the Guaranteed Party further covenants, agrees and acknowledges that the only rights of recovery that the Guaranteed Party has in respect of the Merger Agreement or the
transaction contemplated thereby are its rights to recover from (x) Parent and Merger Sub and their respective successors and assigns under and to the extent expressly provided in the Merger Agreement, (y) Guarantor (but not any
Non-Recourse Party) and its successors and assigns under and to the extent expressly provided in this Limited Guarantee and subject to the Cap and the other limitations described herein and the Other Guarantors and their respective successors and
assigns pursuant to and subject to the limitations set forth in the Other Guarantees, and (z) the Guarantor and the Other Guarantors and their respective successors and assigns under the Equity Commitment Letters and the Other Equity Commitment
Letters, as applicable pursuant to and in accordance with the terms thereof (claims against (x), (y) and (z) collectively, the Retained Claims); provided that in the event the Guarantor (i) consolidates with or merges with
any other person and is not the continuing or surviving entity of such consolidation or merger or (ii) transfers or conveys all or a substantial portion of its properties and other assets to any person such that the sum of the Guarantors
remaining net assets plus uncalled capital is less than the Cap, then, and in each such case, the Guaranteed Party may seek recourse, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of
any statue, regulation or other applicable Law, against such continuing or surviving entity or such person, as the case may be, but only if the Guarantor fails to satisfy its payment obligations hereunder and only to the extent of the liability of
the Guarantor hereunder. The Guaranteed Party acknowledges and agrees that Parent and Merger Sub have no assets other than certain contract rights and cash in a de minimis amount and that no additional funds are expected to be contributed to Parent
or Merger Sub unless and until the conditions to Closing are satisfied or waived in accordance with the terms of the Merger Agreement. Recourse against the Guarantor under and pursuant to the terms of this Limited Guarantee and against the Other
Guarantors pursuant to the terms of their Other Guarantees and in each case, any applicable Equity Commitment Letter, shall be the sole and exclusive remedy of the Guaranteed Party and all of its affiliates against the Guarantor and the Non-Recourse
Parties in respect of any liabilities or obligations arising under, or in connection with, the Merger Agreement, the Equity Commitment Letters, the Other Equity Commitment Letters or the transactions contemplated thereby, including by piercing of
the corporate veil, by a claim on or behalf of Parent or Merger Sub. Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any person other than the Guaranteed Party (including any person acting
in a representative capacity) any rights or remedies against any person including Guarantor, except as expressly set forth herein.
9
10. Governing Law; Jurisdiction. This Limited Guarantee shall be deemed to be made
in and in all respects shall be interpreted, construed and governed by and in accordance with the Law of the State of New York applicable to contracts executed in and to be performed therein without regard to the conflicts of law principles thereof.
The parties hereby irrevocably submit to the personal jurisdiction of the courts of the State of New York located in the Borough of Manhattan, and the federal courts of the United States of America located in the State of New York, Borough of
Manhattan, solely in respect of the interpretation and enforcement of the provisions of this Limited Guarantee, and hereby waive, and agree not to assert, as a defense in any action, suit or proceeding for the interpretation or enforcement hereof,
that it is not subject thereto or that such action, suit or proceeding may not be brought or is not maintainable in said courts or that the venue thereof may not be appropriate or that this Limited Guarantee may not be enforced in or by such courts,
and the parties hereto irrevocably agree that all claims with respect to such action or proceeding shall be heard and determined in such a New York State or federal court. The parties hereby consent to and grant any such court jurisdiction over the
person of such parties and, to the extent permitted by law, over the subject matter of such dispute and agree that mailing of process or other papers in connection with any such action or proceeding in the manner provided herein or in such other
manner as may be permitted by law shall be valid and sufficient service thereof.
11. Waiver of Jury Trial. Each party
acknowledges and agrees that any controversy which may arise under this Limited Guarantee is likely to involve complicated and difficult issues, and therefore each such party hereby irrevocably and unconditionally waives any right such party may
have to a trial by jury in respect of any litigation directly or indirectly arising out of or relating to this Limited Guarantee, or the transactions contemplated by this Limited Guarantee. Each party certifies and acknowledges that (i) no
representative, agent or attorney of any other party has represented, expressly or otherwise, that such other party would not, in the event of litigation, seek to enforce the foregoing waiver, (ii) each party understands and has considered the
implications of this waiver, (iii) each party makes this waiver voluntarily, and (iv) each party has been induced to enter into this Limited Guarantee by, among other things, the mutual waivers and certifications in this Section 11.
10
12. Counterparts. This Limited Guarantee may be executed in any number of
counterparts (including by e-mail of PDF or scanned versions or by facsimile), each such counterpart when executed being deemed to be an original instrument, and all such counterparts shall together constitute one and the same agreement.
13. No Third Party Beneficiaries. Except as provided in Section 9, the parties hereby agree that their respective
representations, warranties and covenants set forth herein are solely for the benefit of the other party hereto, in accordance with and subject to the terms of this Limited Guarantee, and this Limited Guarantee is not intended to, and does not,
confer upon any person other than the parties hereto any rights or remedies hereunder, including, the right to rely upon the representations and warranties set forth herein.
14. Confidentiality. This Limited Guarantee shall be treated as confidential and is being provided to the Guaranteed Party
solely in connection with the Merger. This Limited Guarantee may not be used, circulated, quoted or otherwise referred to in any document, except with the written consent of the Guarantor; provided that the parties may disclose the existence and
content of this Limited Guarantee to the extent required by Law, the applicable rules of any national securities exchange or in connection with any SEC filings relating to the Merger and the Guarantor may disclose it to any Non-Recourse Party.
15. Miscellaneous.
(a) This Limited Guarantee and the Merger Agreement contain the entire agreement between the parties relative to the subject matter hereof and
supersede all prior agreements and undertakings between the parties with respect to the subject matter hereof. No modification or waiver of any provision hereof shall be enforceable unless approved by the Guaranteed Party and the Guarantor in
writing.
11
(b) Any term or provision hereof that is prohibited or unenforceable in any jurisdiction shall
be, as to such jurisdiction, ineffective solely to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction; provided, however, that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Cap provided in Section 1 hereof
and the provisions of Sections 8 and 9 and this Section 15(b).
(c) The descriptive headings herein are inserted for convenience of
reference only and are not intended to be part of or to affect the meaning or interpretation of this Limited Guarantee.
(d) All parties
acknowledge that each party and its counsel have reviewed this Limited Guarantee and that any rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this
Limited Guarantee.
[Remainder of page intentionally left blank]
12
IN WITNESS WHEREOF, the Guarantor has caused this Limited Guarantee to be executed and delivered as of the date
first written above by its officer thereunto duly authorized.
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|
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GUARANTOR |
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Guangzhou Huifu Kaile Investment (L.P.) |
|
|
|
By: |
|
/s/ Li Xiangmin |
Name: |
|
Li Xiangmin |
Title: |
|
Appointed Representative |
|
[affixed with the company seal of Guangzhou Huifu Kaile Investment (L.P.)] |
Signature Page to
Limited Guarantee
IN WITNESS WHEREOF, the Guaranteed Party has caused this Limited Guarantee to be executed and delivered as of the
date first written above by its officer thereunto duly authorized.
|
|
|
GUARANTEED PARTY |
|
CHINA MING YANG WIND POWER GROUP LIMITED |
|
|
By: |
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/s/ Stephen Markscheid |
Name: |
|
Stephen Markscheid |
Title: |
|
Director |
Signature Page to
Limited Guarantee
SCHEDULE A
Other Guarantors
1. |
Shanghai Dajun Guancheng Capital Fund |
China Ming Yang Wind Power Grp. Limited American Depositary Shares, Each Representing One Ordinary Share $0.001 Par Value (NYSE:MY)
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China Ming Yang Wind Power Grp. Limited American Depositary Shares, Each Representing One Ordinary Share $0.001 Par Value (NYSE:MY)
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From Jul 2023 to Jul 2024