UNITED STATES

 

 

SECURITIES AND EXCHANGE COMMISSION

 

 

Washington, D.C. 20549

 

 

 

 

 

SCHEDULE 13D

 

 

Under the Securities Exchange Act of 1934

SINA Corporation

(Name of Issuer)

 

Ordinary Shares, par value $0.133

(Title of Class of Securities)

 

G81477104

(CUSIP Number)

 

Charles Chao
New Wave MMXV Limited
20/F Ideal International Plaza
No. 58 Northwest 4th Ring Road
Haidian District, Beijing, People’s Republic of China
Telephone: +86 10 5898 3007

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

 

with a copy to:

 

Z. Julie Gao, Esq.
Will H. Cai, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
c/o 42/F, Edinburgh Tower, The Landmark
15 Queen’s Road Central
Hong Kong
+852 3740-4700

 

November 6, 2015

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because § 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g) check the following box. ¨

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 



 

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1

Name of Reporting Persons
Charles Chao

 

2

Check the Appropriate Box if a Member of a Group (See Instructions)

 

 

(a)

 o

 

 

(b)

 o

 

3

SEC Use Only

 

4

Source of Funds (See Instructions)
PF

 

5

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

6

Citizenship or Place of Organization
United States of America

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7

Sole Voting Power
11,601,938 ordinary shares

8

Shared Voting Power
848,795 ordinary shares

9

Sole Dispositive Power
11,601,938 ordinary shares

10

Shared Dispositive Power
848,795 ordinary shares

 

11

Aggregate Amount Beneficially Owned by Each Reporting Person
12,450,733 ordinary shares

 

12

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   o

 

13

Percent of Class Represented by Amount in Row (11)
17.8%

 

14

Type of Reporting Person (See Instructions)
IN

 



 

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1

Name of Reporting Persons
New Wave MMXV Limited

 

2

Check the Appropriate Box if a Member of a Group (See Instructions)

 

 

(a)

 o

 

 

(b)

 o

 

3

SEC Use Only

 

4

Source of Funds (See Instructions)
WC, BK

 

5

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

6

Citizenship or Place of Organization
British Virgin Islands

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7

Sole Voting Power
11,000,000 ordinary shares

8

Shared Voting Power
0

9

Sole Dispositive Power
11,000,000 ordinary shares

10

Shared Dispositive Power

 

11

Aggregate Amount Beneficially Owned by Each Reporting Person
11,000,000 ordinary shares

 

12

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   o

 

13

Percent of Class Represented by Amount in Row (11)
15.8%

 

14

Type of Reporting Person (See Instructions)
CO

 



 

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Item 1. Security and Issuer.

 

This Statement on Schedule 13D (this “Statement”) relates to the ordinary shares, par value $0.133 per share (the “Shares”), of SINA Corporation, a company organized under the laws of the Cayman Islands (the “Company”), whose principal executive offices are located at 37F, Jin Mao Tower, 88 Century Boulevard, Pudong, Shanghai 200121, China.

 

Item 2. Identity and Background

 

This Statement is being filed jointly by Mr. Charles Chao and New Wave MMXV Limited (“New Wave,” together with Mr. Charles Chao, the “Reporting Persons”) pursuant to Rule 13d-1(k)(1) under the Securities Exchange Act of 1934, as amended. A copy of the agreement between the Reporting Persons relating to the joint filing of this statement is attached hereto as Exhibit A.

 

(a)-(c), (f) Mr. Charles Chao is a citizen of the United States of America.  Mr. Chao is the chairman of the board of directors and chief executive officer of the Company and the sole director of New Wave. Mr. Chao’s business address is 20/F Ideal International Plaza, No. 58 Northwest 4th Ring Road, Haidian District, Beijing, People’s Republic of China.

 

New Wave is a British Virgin Islands company solely owned by Mr. Charles Chao. The principal executive offices of New Wave are located at 20/F Ideal International Plaza, No. 58 Northwest 4th Ring Road, Haidian District, Beijing, People’s Republic of China. The name, business address, present principal occupation or employment and citizenship of each executive officer and director of New Wave are set forth on Schedule A hereto and are incorporated herein by reference.

 

(d), (e) During the last five years, none of the Reporting Persons has been: (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

 

Item 3. Source and Amount of Funds or Other Considerations.

 

Mr. Charles Chao and the Company entered into a subscription agreement dated June 1, 2015 (the “Subscription Agreement”), pursuant to which New Wave, a company wholly owned by Mr. Charles Chao, acquired 11,000,000 Shares of the Company (the “Subscription Shares”) at a total subscription price of US$456,390,000 (the “Subscription Price”) on November 6, 2015 (the “Closing Date”).

 

To fund part of the Subscription Price, New Wave and Credit Suisse AG Hong Kong Branch (“Credit Suisse”) entered into a facility agreement on November 4, 2015 (the “Facility Agreement”), pursuant to which New Wave obtained a 24-month term loan from Credit Suisse in the principal amount of US$230,000,000 (the “Loan”).

 

In connection with the Facility Agreement, New Wave entered into an equitable share mortgage in respect of Shares of the Company with Credit Suisse on November 4, 2015 (the “Share Mortgage”), pursuant to which New Wave granted mortgage in favor of Credit Suisse over all the Subscription Shares to secure its obligation under the Facility Agreement.

 

The remaining funds used to purchase the Subscription Shares were from the operating capital of New Wave, which was contributed by Mr. Charles Chao.

 



 

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The descriptions of the Subscription Agreement, the Facility Agreement and the Share Mortgage in this Item 3 are qualified in their entirety by reference to the complete text of the Subscription Agreement, the Facility Agreement and the Share Mortgage, which have been filed as Exhibit B, Exhibit C and Exhibit D hereto, and which is incorporated herein by reference in their entirety.

 

Item 4. Purpose of Transaction.

 

The information set forth in Item 3 is hereby incorporated by reference in this Item 4.

 

Lock-up

 

Pursuant to the Subscription Agreement, Mr. Charles Chao and New Wave will not offer, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of any of the Subscription Shares on the open market until after six months following the Closing Date (the “Lock-Up Period”).

 

Repayment of the Loan

 

New Wave shall repay the Loan on the maturity date, which is the date falling 24 months following November 6, 2015, the utilization date.  New Wave shall pay interest on the Loan on the last day of each three-month interest period. The first interest period shall commence on November 6, 2015, the utilization date, and the last interest period shall end on the maturity date.

 

Share Mortgage

 

Pursuant to the Share Mortgage, New Wave mortgages in favor of Credit Suisse, the Mortgagee, all of its right, title and interest in and to the Subscription Shares including all benefits, present and future, actual and contingent accruing in respect of the Subscription Shares, as a continuing security for the discharge of all the obligations under the Facility Agreement. Unless and until the occurrence of an enforcement event (as defined under the Share Mortgage), New Wave shall be entitled to (i) exercise all voting and consensual powers pertaining to the Subscription Shares for all purposes not inconsistent with the terms of the Share Mortgage or other finance documents (as defined under the Share Mortgage), and (ii) receive and retain any dividends, interest or other moneys or assets accruing on or in respect of the Subscription Shares.

 

Registration Rights Agreement

 

On the Closing Date, the Company and New Wave entered into a Registration Rights Agreement (the “Registration Rights Agreement”), pursuant to which the Company agreed to provide New Wave with certain registration rights in respect of the Shares held by New Wave.

 

After the expiration of the Lock-Up Period and upon receipt of a written request from New Wave requesting that the Company effect a registration under the Securities Act of 1933, as amended (the “Securities Act”), covering all of part of the Shares held by New Wave, the Company shall, as soon as is practicable, but in no event later than thirty (30) days (excluding any days which occur during a permitted Blackout Period (as such term is defined in the Registration Rights Agreement)) after receipt of such written request, file with the SEC, and use its reasonable best efforts to cause to be declared effective, a registration statement (a “Shelf Registration Statement”), provided, however, that the Company shall not be obligated to effect any such registration if the aggregate price (net of any underwriters’ discounts or commissions) of the sale of Shares relating to such registration is less than US$10,000,000. The Company shall file with the SEC, and use its reasonable best efforts to cause to be declared effective, a Shelf Registration Statement on each of the second and third anniversaries of the Closing Date covering the number of Shares for which registration is requested by New Wave.

 



 

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If, at any time, the Company files a registration statement with the SEC, New Wave will be entitled, subject to certain exceptions, to exercise “piggyback” registration rights requiring the Company to include in any such registration that number of Shares held by New Wave, subject to certain prescribed limitations provided in the Registration Rights Agreement.

 

The Company may, on a limited number of occasions, and in certain prescribed circumstances, delay the filing or effectiveness of any registration statement required to be filed pursuant to the Registration Rights Agreement. Persons who acquire Shares from New Wave through share transfer(s) permitted under the Registration Rights Agreement will be entitled to the same rights and subject to the same obligations that New Wave has under the Registration Rights Agreement.

 

The description of the Registration Rights Agreement in this Item 4 is qualified in its entirety by reference to the complete text of the Registration Rights Agreement, which has been filed as Exhibit E hereto, and which is incorporated herein by reference in its entirety.

 

Although Mr. Charles Chao and New Wave have no present intention to acquire securities of the Company, they intend to review their investment on a regular basis and, as a result thereof and subject to the terms and conditions of the Subscription Agreement, the Facility Agreement and the Share Mortgage, may at any time or from time to time determine, either alone or as part of a group, (i) to acquire additional securities of the Company, through open market purchases, privately negotiated transactions or otherwise, (ii) to dispose of all or a portion of the securities of the Company owned by them in the open market, in privately negotiated transactions or otherwise, or (iii) to take any other available course of action, which could involve one or more of the types of transactions or have one or more of the results described in the next paragraph of this Item 4. Any such acquisition or disposition or other transaction would be made in compliance with all applicable laws and regulations and subject to the restrictions on transfers set forth in the Subscription Agreement, the Facility Agreement and the Share Mortgage. Notwithstanding anything contained herein, each of Mr. Charles Chao and New Wave specifically reserves the right to change his/its intention with respect to any or all of such matters. In reaching any decision as to his/its course of action (as well as to the specific elements thereof), each of Mr. Charles Chao and New Wave currently expects that he/it would take into consideration a variety of factors, including, but not limited to, the following: the Company’s business and prospects; other developments concerning the Company and its businesses generally; other business opportunities available to Mr. Charles Chao and New Wave; changes in law and government regulations; general economic conditions; and money and stock market conditions, including the market price of the securities of the Company.

 

Except as set forth in this Schedule 13D, Mr. Charles Chao and New Wave have no present plans or proposals that relate to or would result in:

 

(i)

The acquisition by any person of additional securities of the Company, or the disposition of securities of the Company,

 

 

(ii)

An extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Company,

 

 

(iii)

A sale or transfer of a material amount of assets of the Company,

 



 

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(iv)

Any change in the present board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the board,

 

 

(v)

Any material change in the present capitalization or dividend policy of the Company,

 

 

(vi)

Any other material change in the Company’s business or corporate structure,

 

 

(vii)

Changes in the Company’s charter, bylaws or instruments corresponding thereto or other actions that may impede the acquisition of control of the Company by any person;

 

 

(viii)

A class of securities of the Company being delisted from a national securities exchange or ceasing to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association,

 

 

(ix)

A class of equity securities of the Company becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Securities Act, or

 

 

(x)

Any action similar to any of those enumerated above.

 

Item 5. Interest in Securities of the Issuer.

 

The responses of Mr. Charles Chao and New Wave to Rows (7) through (13) of the cover pages of this Statement are hereby incorporated by reference in this Item 5.

 

Pursuant to the Subscription Agreement, on the Closing Date, New Wave acquired and was deemed to be the beneficial owner of 11,000,000 Shares, representing approximately 15.8% of the total issued and outstanding Shares.

 

After acquiring the Subscription Shares, Mr. Charles Chao’s beneficial ownership in the Company increased to 12,450,733 Shares, representing approximately 17.8% of the total issued and outstanding Shares (including Shares that Mr. Chao has the right to acquire upon exercise of options within 60 days after November 6, 2015 and Shares that Mr. Chao will acquire upon the vesting of restricted share units within 60 days after November 6, 2015). The 12,450,733 Shares beneficially owned by Mr. Charles Chao comprise (i) 11,000,000 shares owned by New Wave, 848,795 shares owned by New-Wave Investment Holding Company Limited, a British Virgin Islands company partially owned by Mr. Chao, 219,438 shares held by Mr. Chao, 337,500 shares issuable upon exercise of options exercisable within 60 days after November 6, 2015, and 45,000 shares issuable upon vesting of restricted share units within 60 days after November 6, 2015.

 

The percentage of Shares identified pursuant to Item 1 beneficially owned by each of Mr. Charles Chao and New Wave is based on 69,550,669 Shares outstanding as of the Closing Date after the issuance of Subscription Shares, excluding 9,274,507 ordinary shares that have been repurchased but not cancelled.

 

Except as disclosed in this statement, none of the Reporting Persons or to the best of their knowledge, any of the persons listed in Schedule A hereto, beneficially owns any Shares or has the right to acquire any Shares.

 

Except as disclosed in this statement, none of the Reporting Persons or to the best of their knowledge, any of the persons listed in Schedule A hereto, presently has the power to vote or to direct the vote or to dispose or direct the disposition of any of the Shares that they may be deemed to beneficially own.

 



 

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Except as disclosed in this statement, none of the Reporting Persons or to the best of their knowledge, any of the persons listed in Schedule A hereto, has effected any transaction in the Shares during the past 60 days.

 

Except as disclosed in this statement, to the best knowledge of the Reporting Persons, no other person has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the Shares beneficially owned by the Reporting Persons.

 

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

 

The information set forth in Items 3 and 4 is hereby incorporated by reference in this Item 6.

 

Except as described above or elsewhere in this Schedule 13D or incorporated by reference in this Schedule 13D, there are no contracts, arrangements, understandings or relationships (legal or otherwise) between Mr. Charles Chao and New Wave or, to the best of their knowledge, any of the persons named in Schedule A hereto and any other person with respect to any securities of the Company, including, but not limited to, transfer or voting of any securities, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or losses, or the giving or withholding of proxies.

 

Item 7. Material to Be Filed as Exhibits.

 

Item 7 of the Schedule 13D is hereby amended in its entirety and replaced with the following:

 

A

Joint Filing Agreement, dated as of November 16, 2015, between Charles Chao and New Wave XXMV Limited

 

 

B

Subscription Agreement, dated as of June 1, 2015 between SINA Corporation and Charles Chao

 

 

C*

Facility Agreement dated November 4, 2015, by and between Credit Suisse AG Hong Kong Branch and New Wave MMXV Limited

 

 

D*

Equitable Share Mortgage in respect of Shares of SINA Corporation dated November 4, 2015, by and between Credit Suisse AG Hong Kong Branch and New Wave MMXV Limited

 

 

E

Registration Rights Agreement dated November 6, 2015, by and between SINA Corporation and New Wave XXMV Limited

 


*                 Confidential treatment has been requested. Confidential material has been redacted and separately filed with the SEC.

 



 

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SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

Dated: November 16, 2015

 

 

 

 

 

 

CHARLES CHAO

 

 

 

 

 

/s/ Charles Chao

 

 

 

 

 

NEW WAVE XXMV LIMITED

 

 

 

 

 

 

 

By:

/s/ Charles Chao

 

Name:

Charles Chao

 

Title:

Director

 



 

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SCHEDULE A

 

Directors and Executive Officers of New Wave MMXV Limited

 

The names of the directors and the names and titles of the executive officers of New Wave and their principal occupations are set forth below.

 

Name

 

Present Principal
Occupation

 

Business Address

 

Citizenship

Directors:

 

 

 

 

 

 

Charles Chao

 

Chairman of the board of director and chief executive officer of SINA Corporation

 

20/F Ideal International Plaza
No. 58 Northwest 4th Ring
Road Haidian District,
Beijing 100080, PRC

 

United States of America

 




Exhibit A

 

JOINT FILING AGREEMENT

 

In accordance with Rule 13d-1(k) promulgated under the Securities Exchange Act of 1934, as amended, the undersigned hereby agree to the joint filing with all other Reporting Persons (as such term is defined in the Schedule 13D referred to below) on behalf of each of them of a statement on Schedule 13D (including amendments thereto) with respect to the ordinary shares, par value of $0.113 per share, of SINA Corporation, a Cayman Islands company, and that this Agreement may be included as an Exhibit to such joint filing. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument.

 

IN WITNESS WHEREOF, the undersigned hereby execute this Agreement as of November 16, 2015.

 

 

CHARLES CHAO

 

 

 

 

 

/s/ Charles Chao

 

 

 

 

 

NEW WAVE XXMV LIMITED

 

 

 

 

 

By:

/s/ Charles Chao

 

Name:

Charles Chao

 

Title:

Director

 

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Exhibit B

 

Execution Version

 

SUBSCRIPTION AGREEMENT

 

This Subscription Agreement (this “Agreement”) is made as of June 1, 2015 by and between:

 

(1)         Sina Corporation, a company incorporated in the Cayman Islands (the “Company”); and

 

(2)         Mr. Charles Chao, an individual (the “Purchaser”).

 

The Purchaser and the Company are sometimes each referred to herein as a “Party,” and collectively as the “Parties.”

 

W I T N E S S E T H:

 

WHEREAS, upon the terms and conditions of this Agreement, the Company desires to issue and sell to the Purchaser, and the Purchaser wishes to purchase from the Company, ordinary shares, $0.133 par value per share (“Ordinary Shares”) of the Company in a private placement exempt from registration under the U.S. Securities Act of 1933, as amended (the “Securities Act”);

 

NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises hereinafter set forth, the Parties hereto agree as follows:

 

ARTICLE I

PURCHASE AND SALE

 

Section 1.1 Issuance, Sale and Purchase of Ordinary Shares. Upon the terms and subject to the conditions of this Agreement, at the Closing (as defined below), the Purchaser agrees to purchase directly or through a special purpose vehicle beneficially owned and controlled by the Purchaser (the “Purchaser Vehicle”), and the Company agrees to sell and issue to the Purchaser or the Purchaser Vehicle designated by the Purchaser, 11,000,000 Ordinary Shares for a purchaser price of US$41.49 per Ordinary Share in immediately available cash, as set forth on Schedule I hereto, free and clear of all liens or Encumbrances as defined below (except for restrictions arising under the Securities Act or created by virtue of this Agreement, including the lock-up provision in Section 3.1 below). The Ordinary Shares issued to the Purchaser or the Purchaser Vehicle, as applicable, pursuant to this Agreement shall be referred to herein as the Purchased Shares.

 

Section 1.2 Closing.

 

(a) Closing.  Subject to Section 1.3, the closing (the “Closing”) of the sale and purchase of the Purchased Shares pursuant to Section 1.1 shall take place remotely via the electronic exchange of the closing documents and signatures (followed by prompt delivery of the originals therefor) on or before September 30, 2015 or such other time as the Parties may mutually agree upon.  The date and time of the Closing are referred to herein as the “Closing Date.”

 



 

(b)  Payment and Delivery.  At the Closing:

 

(i) the Purchaser shall pay and deliver or cause the Purchaser Vehicle to pay and deliver the total purchase price set forth in Schedule I hereto to the Company in U.S. dollars by wire transfer, or by such other method mutually agreeable to the Parties, of immediately available funds to such bank account designated in writing by the Company; and

 

(ii) the Company shall deliver a duly executed share certificate in original form, registered in the name of the Purchaser or the Purchaser Vehicle upon request by the Purchaser, together with a certified true copy of the register of members of the Company, evidencing the Purchased Shares being issued and sold to the Purchaser or the Purchaser Vehicle, as applicable.

 

(c) Restrictive Legend. Each certificate representing the Purchased Shares shall be endorsed with the following legend:

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (AS AMENDED, THE “ACT”) OR UNDER THE SECURITIES LAWS OF ANY STATE. THIS SECURITY MAY NOT BE TRANSFERRED, SOLD OR OFFERED FOR SALE: (A) IN THE ABSENCE OF (1) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, OR (2) AN EXEMPTION OR QUALIFICATION UNDER APPLICABLE SECURITIES LAWS. ANY ATTEMPT TO TRANSFER OR SELL THIS SECURITY IN VIOLATION OF THESE RESTRICTIONS SHALL BE VOID.

 

Section 1.3 Closing Conditions.

 

(a) Conditions to the Company’s Obligations to Effect the Closing. The obligation of the Company to issue and sell the Purchased Shares to the Purchaser as contemplated by this Agreement are subject to the satisfaction, on or before the Closing Date, of each of the following conditions, any of which may be waived in writing by the Company in its sole discretion:

 

(i) All actions required to be taken by the Purchaser in connection with the purchase of the Purchased Shares hereunder shall have been completed.

 

(ii) The representations and warranties of the Purchaser contained in Section 2.1 of this Agreement shall have been true and correct on the date of this Agreement and true and correct in all material respects on and as of the Closing Date; and the Purchaser shall have performed and complied in all material respects with all, and not be in breach or default in any material respect under any, agreements, covenants, conditions and obligations contained in this Agreement that are required to be performed or complied with on or before the Closing Date.

 

2



 

(iii) No governmental authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any law (whether temporary, preliminary or permanent) that is in effect and restrains, enjoins, prevents, prohibits or otherwise makes illegal the consummation of the transactions contemplated by this Agreement, or imposes any damages or penalties in connection with the transactions contemplated by this Agreement that are substantial in relation to the Company; and no action, suit, proceeding or investigation shall have been instituted by a governmental authority of competent jurisdiction or threatened that seeks to restrain, enjoin, prevent, prohibit or otherwise make illegal the consummation of the transactions contemplated by this Agreement, or imposes any damages or penalties in connection with the transactions contemplated by this Agreement that are substantial in relation to the Company.

 

(b) Conditions to the Purchaser’s Obligations to Effect the Closing. The obligation of the Purchaser to purchase and pay for the Purchased Shares as contemplated by this Agreement is subject to the satisfaction, on or before the Closing Date, of the following conditions, any of which may be waived in writing by the Purchaser in his sole discretion:

 

(i) All corporate and other actions required to be taken by the Company in connection with the issuance and sale of the Purchased Shares shall have been completed.

 

(ii) The representations and warranties of the Company contained in Section 2.2 of this Agreement shall have been true and correct on the date of this Agreement and true and correct in all material respects on and as of the Closing Date; and the Company shall have performed and complied in all material respects with all, and not be in breach or default in any material respects under any, agreements, covenants, conditions and obligations contained in this Agreement that are required to be performed or complied with on or before the Closing Date.

 

(iii) No governmental authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any law (whether temporary, preliminary or permanent) that is in effect and restrains, enjoins, prevents, prohibits or otherwise makes illegal the consummation of the transactions contemplated by this Agreement, or imposes any damages or penalties in connection with the transactions contemplated by this Agreement that are substantial in relation to the Company; and no action, suit, proceeding or investigation shall have been instituted by a governmental authority of competent jurisdiction or threatened that seeks to restrain, enjoin, prevent, prohibit or otherwise make illegal the consummation of the transactions contemplated by this Agreement, or imposes any damages or penalties in connection with the transactions contemplated by this Agreement that are substantial in relation to the Company.

 

3



 

ARTICLE II

REPRESENTATIONS AND WARRANTIES

 

Section 2.1 Representations and Warranties of the Purchaser. The Purchaser hereby represents and warrants to the Company, as of the date hereof and as of the Closing Date, as follows:

 

(a) Authority. The Purchaser has full power and authority to enter into, execute and deliver this Agreement and each agreement, certificate, document and instrument to be executed and delivered by the Purchaser pursuant to this Agreement and to perform his obligations hereunder and thereunder.

 

(b) Valid Agreement. This Agreement has been duly executed and delivered by the Purchaser and constitutes the legal, valid and binding obligation of the Purchaser, enforceable against him in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors’ rights generally, and (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.

 

(c) Noncontravention. Neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will (i) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental entity or court to which the Purchaser is subject, or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of or creation of an encumbrance under, or create in any party the right to accelerate, terminate, modify, or cancel, any agreement, contract, lease, license, instrument, or other arrangement to which the Purchaser is a party or by which the Purchaser is bound or to which any of the Purchaser’s assets are subject. There is no action, suit or proceeding, pending or threatened against the Purchaser that questions the validity of this Agreement or the right of the Purchaser to enter into this Agreement or to consummate the transactions contemplated hereby.

 

(d) Consents and Approvals. Neither the execution and delivery by the Purchaser of this Agreement, nor the consummation by the Purchaser of any of the transactions contemplated hereby or thereby, nor the performance by the Purchaser of this Agreement in accordance with its terms requires the consent, approval, order or authorization of, or registration with, or the giving of notice to, any governmental or public body or authority or any third party, except such as have been or will have been obtained, made or given on or prior to the Closing Date.

 

4



 

(e)  Purchaser Vehicle.  In the event that the Purchaser uses the Purchaser Vehicle to acquire and hold the Purchased Shares at the Closing, as of the Closing Date, (i) the Purchaser Vehicle is duly formed, validly existing and in good standing in the jurisdiction of its organization; (ii) the Purchaser Vehicle has full power and authority to acquire and hold the Purchased Shares (the “Closing Action”); (iii) the Closing Action does not and will not violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental entity or court to which the Purchaser Vehicle is subject, or conflict with, result in a breach of, constitute a default under, result in the acceleration of or creation of an encumbrance under, or create in any party the right to accelerate, terminate, modify, or cancel, any agreement, contract, lease, license, instrument, or other arrangement to which the Purchaser Vehicle is a party or by which the Purchaser Vehicle is bound or to which any of the Purchaser Vehicle’s assets are subject; (iii) there is no action, suit or proceeding, pending or threatened against the Purchaser Vehicle that questions the right of the Purchaser Vehicle to take the Closing Action; and (iv) the Closing Action does not require the consent, approval, order or authorization of, or registration with, or the giving of notice to, any governmental or public body or authority or any third party, except such as have been or will have been obtained, made or given on or prior to the Closing Date.

 

(f) Status and Investment Intent.

 

(i) Experience. The Purchaser has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the Purchased Shares. The Purchaser is capable of bearing the economic risks of such investment, including a complete loss of its investment.

 

(ii) Purchase Entirely for Own Account. The Purchaser is acquiring the Purchased Shares that it is purchasing pursuant to this Agreement for investment for its own account for investment purposes only and not with the view to, or with any intention of, resale, distribution or other disposition thereof. The Purchaser does not have any direct or indirect arrangement, or understanding with any other persons to distribute, or regarding the distribution of the Purchased Shares in violation of the Securities Act or any other applicable state securities law.

 

(iii) Solicitation. The Purchaser was not identified or contacted through the marketing of the Purchase Shares.  The Purchaser did not contact the Company as a result of any general solicitation or directed selling efforts.

 

5



 

(iv) Restricted Securities. The Purchaser acknowledges that the Purchased Shares are “restricted securities” that have not been registered under the Securities Act or any applicable state securities law. The Purchaser further acknowledges that, absent an effective registration under the Securities Act, the Purchased Shares may only be offered, sold or otherwise transferred (x) to the Company, or (y) pursuant to an exemption from registration under the Securities Act.

 

Section 2.2 Representations and Warranties of the Company. The Company hereby represents and warrants to the Purchaser, as of the date hereof and as of the Closing Date, as follows:

 

(a) Due Formation. The Company is a company duly incorporated as an exempted company with limited liability, validly existing and in good standing under the laws of the Cayman Islands. The Company has all requisite power and authority to carry on its business as it is currently being conducted.  Each Subsidiary (as defined below) has been duly organized, is validly existing and in good standing under the laws of its jurisdiction of organization, and has the requisite corporate power and authorization to own, lease and operate its properties and to carry on its business as now being conducted and as described in the SEC Documents (as defined below).

 

(b) Authority. The Company has full power and authority to enter into, execute and deliver this Agreement and each agreement, certificate, document and instrument to be executed and delivered by the Company pursuant to this Agreement and to perform its obligations hereunder and thereunder. The execution and delivery by the Company of this Agreement and the performance by the Company of its obligations has been duly authorized by all requisite actions on its part.

 

(c) Valid Agreement. This Agreement has been duly executed and delivered by the Company and constitutes the legal, valid and binding obligations of the Company, enforceable against it in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors’ rights generally, and (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.

 

(d) Capitalization. All outstanding shares of capital stock of the Company and all outstanding shares of capital stock of each of the Company’s subsidiaries and consolidated affiliates (each a “Subsidiary” and collectively “Subsidiaries”) have been issued and granted in compliance with (x) all applicable Securities Laws and other applicable laws and (y) all requirements set forth in applicable contracts, without violation of preemptive rights, rights of first refusal or other similar rights. “Securities Laws” means the Securities Act, the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”), the listing rules of, or any listing agreement with the NASDAQ and any other applicable law regulating securities or takeover matters.

 

6



 

(e) Due Issuance of the Purchased Shares. The Purchased Shares have been duly authorized and, when issued and delivered to and paid for by the Purchaser pursuant to this Agreement, will be validly issued, fully paid and non-assessable and free and clear of any pledge, mortgage, security interest, encumbrance, lien, charge, assessment, title defect, right of first refusal, right of pre-emption, third party right or interest, claim or restriction of any kind or nature (collectively the “Encumbrances”), except for restrictions arising under the Securities Act or created by virtue of this Agreement (including the lock-up provision in Section 3.1 below), and upon delivery and entry into the register of members of the Company will transfer to the Purchaser good and valid title to the Purchased Shares.

 

(f) Noncontravention. Neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby and thereby, will (i) violate any provision of the organizational documents of the Company or its Subsidiaries or violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental entity or court to which the Company or its Subsidiaries is subject, or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of or creation of an Encumbrance under, or create in any party the right to accelerate, terminate, modify, or cancel, any agreement, contract, lease, license, instrument, or other arrangement to which the Company or its Subsidiaries is a party or by which the Company or its Subsidiaries is bound or to which any of the Company’s or its Subsidiaries’ assets are subject. There is no action, suit or proceeding, pending or threatened against the Company or its Subsidiaries that questions the validity of this Agreement or the right of the Company to enter into this Agreement or to consummate the transactions contemplated hereby.

 

(g) Consents and Approvals. Neither the execution and delivery by the Company of this Agreement, nor the consummation by the Company of any of the transactions contemplated hereby and thereby, nor the performance by the Company of this Agreement in accordance with its terms requires the consent, approval, order or authorization of, or registration with, or the giving notice to, any governmental or public body or authority or any third party, except such as have been or will have been obtained, made or given on or prior to the Closing Date.

 

(h) Compliance with Laws. The business of the Company or its Subsidiaries is not being conducted in violation of any law or government order applicable to the Company (including, without limitation, the U.S. Foreign Corrupt Practices Act, as amended, and other anti-bribery laws of applicable jurisdictions) except for violations which do not and would not have a Material Adverse Effect. As used herein, “Material Adverse Effect” shall mean any event, fact, circumstance or occurrence that, individually or in the aggregate with any other events, facts, circumstances or occurrences, results in or would reasonably be expected to result in a material adverse change in or a material adverse effect on any of (i) the financial condition, assets, liabilities, results of operations, business, operations, or prospects of the Company or its Subsidiaries taken as a whole, except to the extent that any such Material Adverse Effect results from (x) the public disclosure of the transactions contemplated under this Agreement in accordance with the terms of such documents, (y) changes in generally accepted accounting principles that are generally applicable to comparable companies, or (z) changes in general economic and market conditions; or (ii) the ability of the Company to consummate the transactions contemplated by this Agreement and to timely perform its material obligations under this Agreement.

 

7



 

(i) SEC Documents. The Company has timely filed or furnished, as applicable, all reports, schedules, forms, statements and other documents required to be filed or furnished by it with the U.S. Securities and Exchange Commission (the “SEC”) pursuant to the Securities Act or the Exchange Act and the rules and regulations promulgated thereunder (all of the foregoing documents filed with or furnished to the SEC and all exhibits included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the “SEC Documents”). As of their respective filing or furnishing dates, the SEC Documents complied 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, as applicable, to the respective SEC Documents, and, none of the SEC Documents, at the time they were filed or furnished, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The information contained in the SEC Documents, considered as a whole and as amended as of the date hereof, do not as of the date hereof, and will not as of the Closing Date, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. There are no contracts, agreements, arrangements, transactions or documents which are required to be described or disclosed in the SEC Documents or to be filed as exhibits to the SEC Documents which have not been so described, disclosed or filed. The Company is in compliance with the applicable listing and corporate governance rules and regulations of the NASDAQ. The Company and its Subsidiaries have taken no action designed to, or reasonably likely to have the effect of, delisting its ADSs from the NASDAQ. The Company has not received any notification that the SEC or the NASDAQ is contemplating suspending or terminating such listing (or the applicable registration under the Exchange Act related thereto).

 

8



 

(j) Investment Company.  The Company is not and, after giving effect to the issuance and sale of the Purchased Shares, the consummation of the issuance and sale and the application of the proceeds hereof and thereof, will not be an “investment company,” as such term is defined in the U.S. Investment Company Act of 1940, as amended.

 

(k) Events Subsequent to Most Recent Fiscal Period. Since December 31, 2014 until the date hereof and to the Closing Date, there has not been any events that, to the Company’s knowledge, will have a Material Adverse Effect.

 

(l) Litigation. There are no actions by or against the Company or its Subsidiaries or affecting the business or any of the assets of the Company or its Subsidiaries pending before any governmental authority, or, to the Company’s knowledge, threatened to be brought by or before any governmental authority, that would have a Material Adverse Effect.

 

(m) Solicitation. Neither the Company nor any person acting on its behalf has offered or sold the Purchased Shares by any form of general solicitation or general advertising or directed selling efforts.

 

ARTICLE III

COVENANTS

 

Section 3.1 Lock-up.  The Purchaser agrees that it will not, during the period commencing on the date hereof and ending six (6) months after the Closing Date (the “Lock-Up Period”), offer, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of any of the Purchased Shares on the open market.  The Purchaser further understands that the provisions of this Section 3.1 shall be binding upon the Purchaser Vehicle and the Purchaser’s and the Purchaser Vehicle’s successors and assigns, as applicable.

 

Section 3.2 Registration Rights. The Company agrees that it shall enter into a registrations right agreement with the Purchaser or the Purchaser Vehicle upon request by the Purchaser at or prior to the Closing in the form and substance to the reasonable satisfactory of the Purchaser.

 

Section 3.3 Further Assurances. From the date of this Agreement until the Closing Date, (i) the Parties shall use their reasonable best efforts to fulfill or obtain the fulfillment of the conditions precedent to the consummation of the transactions contemplated hereby, and (ii) the Company shall, and shall cause each of its Subsidiaries to (x) conduct its business and affairs in the ordinary course of business consistent with past practice, (y) not take any action, or omit to take any action, that would reasonably be expected to make any of its representations and warranties in this Agreement untrue at, or as of any time before, the Closing Date.

 

9



 

ARTICLE IV

INDEMNIFICATION

 

Section 4.1 Indemnification. The Company and the Purchaser (each an “Indemnifying Party”) shall each indemnify and hold the other Party and its respective directors, officers and agents (collectively, the “Indemnified Party”) harmless from and against any losses, claims, damages, judgments, fines, obligations, expenses and liabilities of any kind or nature whatsoever, including but not limited to any investigative, legal and other expenses incurred in connection with, and any amounts paid in settlement of, any pending or threatened legal action or proceeding, and any taxes or levies that may be payable by such person by reason of the indemnification of any indemnifiable loss hereunder (collectively, “Losses”) resulting from or arising out of: (i) the breach of any representation or warranty of such Indemnifying Party contained in this Agreement or in any schedule or exhibit hereto; or (ii) the violation or nonperformance, partial or total, of any covenant or agreement of such Indemnifying Party contained in this Agreement for reasons other than gross negligence or willful misconduct of such Indemnified Party.  In calculating the amount of any Losses of an Indemnified Party hereunder, there shall be subtracted the amount of any insurance proceeds and third-party payments received by the Indemnified Party with respect to such Losses, if any.

 

Section 4.2 Third Party Claims.

 

(a) If any third party shall notify the Indemnified Party in writing with respect to any matter involving a claim by such third party (a “Third Party Claim”) which the Indemnified Party believes would give rise to a claim for indemnification against the Indemnifying Party under this Article IV, then the Indemnified Party shall promptly (i) notify the Indemnifying Party thereof in writing within thirty (30) days of receipt of notice of such claim and (ii) transmit to the Indemnifying Party a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim, if any, and the basis of the Indemnified Party’s request for indemnification under this Agreement.

 

(b) Upon receipt of a Claim Notice with respect to a Third Party Claim, the Indemnifying Party shall have the right to assume the defense of any Third Party Claim by, within (30) days of receipt of the Claim Notice, notifying the Indemnified Party in writing that the Indemnifying Party elects to assume the defense of such Third Party Claim, and upon delivery of such notice by the Indemnifying Party, the Indemnifying Party shall have the right to fully control and settle the proceeding, provided, that, any such settlement or compromise shall be permitted hereunder only with the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed.

 

10



 

(c) If requested by the Indemnifying Party, the Indemnified Party shall, at the sole cost and expense of the Indemnifying Party, cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim which the Indemnifying Party elects to contest, including the making of any related counterclaim against the person asserting the Third Party Claim or any cross complaint against any person. The Indemnified Party shall have the right to receive copies of all pleadings, notices and communications with respect to any Third Party Claim, other than any privileged communications between the Indemnifying Party and its counsel, and shall be entitled, at its sole cost and expense, to retain separate co-counsel and participate in, but not control, any defense or settlement of any Third Party Claim assumed by the Indemnifying Party pursuant to Section 4.2(b).

 

(d) In the event of a Third Party Claim for which the Indemnifying Party elects not to assume the defense or fails to make such an election within the 30 days of the Claim Notice, the Indemnified Party may, at its option, defend, settle, compromise or pay such action or claim at the expense of the Indemnifying Party; provided, that, any such settlement or compromise shall be permitted hereunder only with the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed.

 

Section 4.3 Other Claims. In the event the Indemnified Party should have a claim against the Indemnifying Party hereunder which does not involve a Third Party Claim, the Indemnified Party shall promptly transmit to the Indemnifying Party a written notice (the “Indemnity Notice”) describing in reasonable detail the nature of the claim, the Indemnified Party’s best estimate of the amount of Losses attributable to such claim and the basis of the Indemnified Party’s request for indemnification under this Agreement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the Indemnity Notice that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.

 

Section 4.4 Cap. Notwithstanding the foregoing, the Indemnifying Party shall have no liability (for indemnification or otherwise) with respect to any Losses in excess of the value of the consideration set forth on Schedule I attached hereto.

 

ARTICLE V

MISCELLANEOUS

 

Section 5.1 Survival of the Representations and Warranties. All representations and warranties made by any Party shall survive for two years and shall terminate and be without further force or effect on the second anniversary of the date hereof, except as to (i) any claims thereunder which have been asserted in writing pursuant to Section 5.6 against the Party making such representations and warranties on or prior to such second anniversary, and (ii) the Company’s representations contained in Section 2.2(a), (b), (c), (d) and (e) hereof, each of which shall survive indefinitely.

 

11



 

Section 5.2 Governing Law; Arbitration.  This Agreement shall be governed and interpreted in accordance with the internal laws of the State of New York.  Any dispute arising out of or relating to this Agreement, including any question regarding its existence, validity or termination (“Dispute”) shall be referred to and finally resolved by arbitration at the Hong Kong International Arbitration Centre in accordance with the Hong Kong International Arbitration Centre Administered Arbitration Rules then in force.  There shall be three arbitrators.  Each Party has the right to appoint one arbitrator and the third arbitrator shall be appointed by the Hong Kong International Arbitration Centre. The language to be used in the arbitration proceedings shall be English.  Each of the Parties irrevocably waives any immunity to jurisdiction to which it may be entitled or become entitled (including without limitation sovereign immunity, immunity to pre-award attachment, post-award attachment or otherwise) in any arbitration proceedings and/or enforcement proceedings against it arising out of or based on this Agreement or the transactions contemplated hereby.

 

Section 5.3 Amendment. This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto.

 

Section 5.4 Binding Effect. This Agreement shall inure to the benefit of, and be binding upon, each of the Company and the Purchaser and their respective heirs, successors and permitted assigns and legal representatives.

 

Section 5.5 Assignment. Neither this Agreement nor any of the rights, duties or obligations hereunder may be assigned by the Company or the Purchaser without the express written consent of the other Party, except that the Purchaser may assign all or any part of his rights and obligations hereunder to any affiliate controlled by the Purchaser without the consent of the Company, provided that no such assignment shall relieve the Purchaser of its obligations hereunder if such assignee does not perform such obligations. Any purported assignment in violation of the foregoing sentence shall be null and void.

 

Section 5.6 Notices. All notices, requests, demands, and other communications under this Agreement shall be in writing and shall be deemed to have been duly given on the date of actual delivery if delivered personally to the Party to whom notice is to be given, on the date sent if sent by telecopier, tested telex or prepaid telegram, on the next business day following delivery to Federal Express properly addressed or on the day of attempted delivery by the U.S. Postal Service if mailed by registered or certified mail, return receipt requested, postage paid, and properly addressed as follows:

 

12



 

If to the Purchaser, at:

The address set forth in Schedule I hereto.

 

 

If to the Company, at:

Sina Corporation

 

20/F Beijing Ideal International Plaza

 

No. 58 North 4th Ring Road West

 

Haidian District, Beijing 100080

 

The People’s Republic of China

 

Attn: Chief Financial Officer

 

Any Party may change its address for purposes of this Section 5.6 by giving the other Parties hereto written notice of the new address in the manner set forth above.

 

Section 5.7 Entire Agreement. This Agreement constitutes the entire understanding and agreement between the Parties with respect to the matters covered hereby, and all prior agreements and understandings, oral or in writing, if any, between the Parties with respect to the matters covered hereby are merged and superseded by this Agreement.

 

Section 5.8 Severability. If any provisions of this Agreement shall be adjudicated to be illegal, invalid or unenforceable in any action or proceeding whether in its entirety or in any portion, then such provision shall be deemed amended, if possible, or deleted, as the case may be, from the Agreement in order to render the remainder of the Agreement and any provision thereof both valid and enforceable, and all other provisions hereof shall be given effect separately therefrom and shall not be affected thereby.

 

Section 5.9 Fees and Expenses. Except as otherwise provided in this Agreement, each of the Company and the Purchaser will bear their respective expenses incurred in connection with the negotiation, preparation and execution of this Agreement and the transactions contemplated hereby, including fees and expenses of attorneys, accountants, consultants and financial advisors..

 

Section 5.10 Confidentiality. Each Party shall keep in confidence, and shall not use (except for the purposes of the transactions contemplated hereby) or disclose, any non-public information disclosed to it or its affiliates, representatives or agents in connection with this Agreement or the transactions contemplated hereby except as required under the Securities Laws or pursuant to an effective government order.  Each Party shall ensure that its affiliates, representatives and agents keep in confidence, and do not use (except for the purposes of the transactions contemplated hereby) or disclose, any such non-public information except as required under the Securities Laws or pursuant to an effective government order.

 

13



 

Section 5.11 Specific Performance. The Parties agree that irreparable damage would occur in the event any provision of this Agreement were not performed in accordance with the terms hereof and that the Parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy at law or equity.

 

Section 5.12 Termination. In the event that the Closing shall not have occurred by December 31, 2015, this Agreement shall be terminated unless the Parties mutually agree to renegotiate in writing; except for the provisions of Sections 5.10, which shall survive any termination under this Section 5.12.

 

Section 5.13 Headings.  The headings of the various articles and sections of this Agreement are inserted merely for the purpose of convenience and do not expressly or by implication limit, define or extend the specific terms of the section so designated.

 

Section 5.14 Execution in Counterparts.  For the convenience of the Parties and to facilitate execution, this Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument.

 

[SIGNATURE PAGE FOLLOWS]

 

14



 

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the day and year first above written.

 

 

SINA CORPORATION

 

 

 

 

 

 

 

By:

/s/ Bonnie Zhang

 

Name:

Bonnie Zhang

 

Title:

CFO

 

[Signature Page to Subscription Agreement]

 



 

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the day and year first above written.

 

 

PURCHASER

 

 

 

 

 

CHARLES CHAO

 

 

 

 

 

/s/ Charles Chao

 

[Signature Page to Subscription Agreement]

 



 

SCHEDULE I

 

Purchaser

 

Total Purchase
Price

 

Purchased Shares

 

Notice Address

 

 

 

 

 

 

 

Charles Chao

 

US$456,390,000 in immediately available cash

 

11,000,000 Ordinary Shares

 

Charles Chao
SINA Corporation
20/F Beijing Ideal International Plaza
No. 58 North 4
th Ring Road West
Haidian District, Beijing 100080
The People’s Republic of China

 




Exhibit C

 

EXECUTION VERSION

 

Confidential Information Redacted *

 

November 4, 2015

 

NEW WAVE MMXV LIMITED
as Borrower

 

provided by

 

CREDIT SUISSE AG HONG KONG BRANCH

 

as Lender

 


 

FACILITY AGREEMENT
RELATING TO A US$230,000,000 TERM LOAN
FACILITY

 


 

GRAPHIC

 

18th Floor, One Exchange Square
8 Connaught Place, Central
Hong Kong
Tel: +852.2912.2500

 

www.lw.com

 


* Certain portions of this Exhibit have been omitted based upon a request for confidential treatment. The omitted portions have been filed separately with the SEC.

 



 

CONTENTS

 

CLAUSE

 

PAGE

1.

Definitions and Interpretation

3

2.

The Facility

19

3.

Purpose

19

4.

Conditions of Utilisation

19

5.

Utilisation

20

6.

Repayment

21

7.

Prepayment and cancellation

21

8.

Interest

23

9.

Interest Periods

24

10.

Break Costs

25

11.

[intentionally left blank]

25

12.

Tax gross-up and indemnities

25

13.

Increased Costs

28

14.

Mitigation by the Lender

30

15.

Other indemnities

30

16.

Costs and expenses

31

17.

Representations

32

18.

Information undertakings

40

19.

General undertakings

41

20.

Collateral

48

21.

Events of Default

50

22.

Changes to the Parties

54

23.

Disclosure of information

55

24.

Payment mechanics

57

25.

Set-off

58

26.

Notices

58

27.

Calculations and certificates

60

28.

Partial invalidity

60

29.

Remedies and waivers

61

30.

Rehypothecation

61

31.

Amendments and waivers

61

32.

Counterparts

62

33.

Governing law

62

34.

Enforcement

62

35.

Waiver of immunities

63

Schedule 1 Conditions Precedent

64

 

1



 

Schedule 2 Utilisation Request

67

Schedule 3 Top-Up Notice

68

 

2



 

THIS AGREEMENT is dated November 4, 2015 and made between:

 

(1)                                      NEW WAVE MMXV LIMITED, a BVI business company with limited liability incorporated in the British Virgin Islands with company number 1884011 and with its registered office at Kingston Chambers, P.O. Box 173, Road Town, Tortola, British Virgin Islands (the “Borrower”); and

 

(2)                                      CREDIT SUISSE AG HONG KONG BRANCH as lender (the Lender”). IT IS AGREED as follows:

 

1.                                      DEFINITIONS AND INTERPRETATION

 

1.1                               Definitions

 

In this Agreement:

 

Affiliate” means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company.

 

Anti-Corruption Laws” means, without limitation, the United Kingdom Bribery Act 2010, the United States Foreign Corrupt Practices Act of 1977 and other similar legislation in other jurisdictions.

 

Authorisation” means:

 

(a)                                 an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation, lodgement or registration; or

 

(b)                                 in relation to anything which will be fully or partly prohibited or restricted by law if a Governmental Agency intervenes or acts in any way within a specified period after lodgement, filing, registration or notification, the expiry of that period without intervention or action.

 

Availability Period” means the period from (and including) the date of this Agreement to (and including) the date falling one Month following the date of this Agreement.

 

Board” means the Board of Governors of the Federal Reserve System of the United States or any successor.

 

Borrower Change of Control” means:

 

(a)                                 the Guarantor ceases to be the beneficial owner of [***] per cent. of the issued shares in the Borrower;

 

(b)                                 the aggregate number of issued shares in the Borrower beneficially owned by any person and any Affiliate of that person exceeds the number of issued shares in the Borrower beneficially owned by the Guarantor;

 

(c)                                  the Guarantor ceases to have the ability to exercise [***]% of the voting rights in the Borrower; or

 

(d)                                 the Guarantor ceases to be the sole director of the Borrower.

 

Borrower Contribution Amount” means the amount in US dollar determined in accordance with the following formula:

 

A – B

 

3



 

Where:

 

A   =                                the “Total Purchase Price” set out in Schedule 1 to the Subscription Agreement.

 

B   =                                 the amount borrowed by the Borrower under the Facility after deducting the amount (if any) which the Borrower directs the Lender to apply towards payment of fees, costs and expenses payable by the Borrower pursuant to Clause 16.1(b) (Transaction expenses).

 

Break Costs” means the amount (if any) by which:

 

(a)                                      the interest (excluding the Margin) which the Lender should have received pursuant to the terms of this Agreement for the period from the date of receipt of all or any part of the principal amount of the Loan or Unpaid Sum to the last day of the current Interest Period in respect of the Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;

 

exceeds:

 

(b)                                      the amount of interest which the Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the Hong Kong interbank market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.

 

Business Day” means a day (other than a Saturday or Sunday) on which banks are open for general business in Hong Kong.

 

BVI Act” means the BVI Business Companies Act, 2004 (as amended) of the British Virgin Islands.

 

Cash Collateral” means the amount of cash in USD standing to the credit of the Cash Collateral Account, in cleared funds and subject to a first ranking Transaction Security in favour of the Lender.

 

Cash Collateral Account” means the cash account with account number [***] maintained by the Borrower with the Lender (including any account which may from time to time be subsequently replaced, re-numbered or otherwise substituted) and which is subject to a first ranking Transaction Security in favour of the Lender in form and substance satisfactory to the Lender.

 

Cayman Security Agreement” means the Cayman Islands law share mortgage dated on or about the date of this Agreement granted by the Borrower in favour of the Lender.

 

Clearance System” means:

 

(a)                                      any person whose business is or includes the provision of clearance service or the provision of security accounts; or

 

(b)                                      any nominee or depository for such person.

 

Code” means the US Internal Revenue Code of 1986, as amended.

 

Collateral” means, collectively, all of the assets and property (including the Cash Collateral and the Securities Collateral) over which Security is purported to be granted by any Transaction Security Document.

 

Commitment” means US$230,000,000.

 

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Company” means SINA Corporation, an exempted company incorporated under the laws of the Cayman Islands with company number 74902, having its registered office at c/o Maples Corporate Services Limited, P.O. Box 309, Ugland House, South Church Street, Cayman Islands.

 

Company Share Closing Price” means, in respect of the Company Shares on any Valuation Day:

 

(a)                                 if the Valuation Day is a Scheduled Trading Day for the Company Shares and such day is not a Disrupted Day for the Company Shares, the official closing price for each Company Share on the relevant Exchange on that date;

 

(b)                                 if the Valuation Day is not a Scheduled Trading Day for the Company Shares, the Company Share Closing Price on the immediately preceding Scheduled Trading Day (regardless of whether or not such day is a Disrupted Day for the Company Share); and

 

(c)                                  if the Valuation Day is a Disrupted Day for the Company Shares, as determined by the Lender in good faith by reference to the last available Company Share Closing Price and such other market information as it determines to be relevant.

 

Company Shares” means ordinary shares in the share capital of the Company which have a par value of US$0.133 each.

 

Debt Purchase Transaction” means, in relation to a person, a transaction where such person:

 

(a)                                 purchases by way of assignment or transfer the Commitment or the Loan;

 

(b)                                 enters into any sub-participation in respect of the Commitment or the Loan; or

 

(c)                                  enters into any other agreement or arrangement having an economic effect substantially similar to a sub-participation in respect of the Commitment or the Loan.

 

Default” means an Event of Default or any event or circumstance specified in Clause 21 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default.

 

Disrupted Day” means, in respect of any Eligible Securities, any Scheduled Trading Day for such Eligible Securities on which:

 

(a)                                 a Trading Disruption or an Exchange Disruption in respect of such Eligible Securities occurs; or

 

(b)                                 it is otherwise impossible to obtain a current price for such Eligible Securities from the relevant Exchange.

 

Dividend” means any dividend, charge, fee or other distribution (or interest on any unpaid dividend, charge, fee or other distribution) whether paid in cash or in kind.

 

Eligible Securities” means:

 

(a)                                 the Company Shares; and

 

(b)                                 any other type or class of marketable securities as may be acceptable to the Lender from time to time in its sole discretion.

 

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For the avoidance of doubt, the Lender is not required to designate any type or class of marketable securities (other than the Company Shares) as Eligible Securities.

 

Eligible Securities Lending Ratio” means, in relation to each type or class of Eligible Securities (other than the Company Shares), the ratio (expressed as a percentage) for such type or class of Eligible Securities as stipulated by the Lender from time to time (which, for the avoidance of doubt, may be revised by the Lender from time to time at its sole discretion).

 

Eligible Securities Price” means, in relation to each type or class of Eligible Securities (other than the Company Shares) on any Valuation Day, the product of:

 

(a)                                 the US dollar equivalent of the price for each such Eligible Securities on such Valuation Day (as determined by the Lender by reference to any market information it determines in its sole discretion to be relevant, acting reasonably); and

 

(b)                                 the Eligible Securities Lending Ratio with respect to such type or class of Eligible Securities.

 

Employee Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA which is or was sponsored, maintained or contributed to by, or required to be contributed by, the Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates.

 

ERISA” means the United States Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor thereto.

 

ERISA Affiliate” means, as applied to any person:

 

(a)                                 any corporation which is a member of a controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code of which that person is a member;

 

(b)                                 any trade or business (whether or not incorporated) which is a member of a group of trades or businesses under “common control” within the meaning of Section 414(c) of the Internal Revenue Code of which that person is a member; or

 

(c)                                  any member of an affiliated service group within the meaning of Section 414(m) or (o) of the Internal Revenue Code of which that person, any corporation described in paragraph (a) above or any trade or business described in paragraph (b) above is a member.

 

Any former ERISA Affiliate of the Borrower or any of its Subsidiaries shall continue to be considered an ERISA Affiliate of the Borrower or any such Subsidiary within the meaning of this definition with respect to the period such entity was an ERISA Affiliate of the Borrower or such Subsidiary and with respect to liabilities arising after such period for which the Borrower or such Subsidiary could be liable under the Internal Revenue Code or ERISA.

 

Exchange” means:

 

(a)                                 in respect of Company Shares, the NASDAQ Global Select Market or any successor securities exchange or market on which the Company Shares may be listed; and

 

(b)                                 in respect of any other Eligible Securities, the securities exchange or market on which such other Eligible Securities are listed or traded.

 

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Exchange Act” means the United States Securities Exchange Act of 1934, as amended from time to time, and any successor statute.

 

Exchange Disruption” means, in respect of any Eligible Securities, any event that materially disrupts or impairs (as reasonably determined by the Lender) the ability of market participants in general to effect transactions in, or obtain market values for, such Eligible Securities on the relevant Exchange.

 

Existing Transfer Restrictions” means, in respect to the Pledged Company Shares:

 

(a)                                      any legal restrictions under the federal securities laws of the United States arising solely as a result of Borrower’s status as an “affiliate” (within the meaning of Rule 144 under the Securities Act) of the Company;

 

(b)                                      any legal restrictions under the federal securities laws of the United States arising solely as a result of the Pledged Company Shares constituting “restricted securities” (within the meaning of Rule 144 under the Securities Act); and

 

(c)                                       any restriction imposed by section 3.1 of the Subscription Agreement.

 

Event of Default” means any event or circumstance specified as such in Clause 21 (Events of Default).

 

Facility” means the term loan facility made available under this Agreement as described in Clause 2 (The Facility).

 

Facility Office” means the office or offices notified by the Lender to the Borrower in writing as the office or offices through which it will perform its obligations under this Agreement, which, at the date of this Agreement, is the Lender’s Hong Kong branch.

 

FATCA” means:

 

(a)                                      sections 1471 to 1474 of the Code or any associated regulations or other official guidance;

 

(b)                                      any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of paragraph (a) above; or

 

(c)                                       any agreement pursuant to the implementation of paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any Governmental Agency in any other jurisdiction.

 

FATCA Deduction” means a deduction or withholding from a payment under a Finance Document required by FATCA.

 

FATCA Exempt Party” means a Party that is entitled to receive payments free from any FATCA Deduction.

 

FATCA FFI” means a foreign financial institution as defined in section 1471(d)(4) of the Code which, if the Lender is not a FATCA Exempt Party, could be required to make a FATCA Deduction.

 

Finance Document” means:

 

(a)                                 this Agreement;

 

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(b)                                 the Guarantee;

 

(c)                                  the Issuer Instruction Letter;

 

(d)                                 the Issuer Acknowledgement Letter;

 

(e)                                  any Transaction Security Document;

 

(f)                                   the Utilisation Request; and

 

(g)                                  any other document designated as such by the Lender and the Borrower.

 

Financial Indebtedness” means any indebtedness for or in respect of:

 

(a)                                 moneys borrowed;

 

(b)                                 any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;

 

(c)                                  any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;

 

(d)                                 the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with GAAP, be treated as a finance or capital lease;

 

(e)                                  receivables sold or discounted (other than any receivables to the extent they are sold or discounted on a non-recourse basis);

 

(f)                                   any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing;

 

(g)                                  any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value shall be taken into account);

 

(h)                                 any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and

 

(i)                                     the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (h) above.

 

First Top-Up Event” has the meaning given to it in paragraph (a) of Clause 20.1 (Top-Up Obligations).

 

GAAP” means generally accepted accounting principles in the British Virgin Islands.

 

Governmental Agency” means any government or any governmental agency, semi-governmental or judicial entity or authority (including, without limitation, any stock exchange or any self-regulatory organisation established under statute).

 

Group” means the Guarantor, the Borrower, any other company controlled by the Guarantor from time to time and of such other company’s Affiliates from time to time.

 

Guarantee” means the deed of guarantee executed by the Guarantor in favour of the Lender dated on or about the date of this Agreement.

 

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Guarantor” means Mr. Charles Guowei Chao, holder of U.S. passport number 452055931.

 

Holding Company” means, in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary.

 

Hong Kong Security Deed” means the Hong Kong law security deed to be dated on or about the date of this Agreement granted by the Borrower in favour of the Lender.

 

Indirect Tax” means any goods and services tax, consumption tax, value added tax or any tax of a similar nature.

 

Initial LTV Ratio” means [***] per cent.

 

Interest Period” means, in relation to the Loan, each period determined in accordance with Clause 9 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 8.6 (Default interest).

 

Interpolated Screen Rate” means, in relation to the Loan, the rate which results from interpolating on a linear basis between:

 

(a)                                 the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of the Loan; and

 

(b)                                 the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of the Loan,

 

each as of the Specified Time for the currency of the Loan.

 

Investment Company Act means the United States Investment Company Act of 1940, as amended.

 

Issuer Acknowledgement Letter” means the document entitled “Issuer Acknowledgement Letter” dated on or about the date of this Agreement from the Company to the Lender.

 

Issuer Instruction Letter” means the document entitled “Instruction Letter for Share Issuance” dated on or about the date of this Agreement from the Company and the Borrower to American Stock Transfer & Trust Company, LLC.

 

Legal Reservations” means:

 

(a)                                 the principle that equitable remedies are remedies which may be granted or refused at the discretion of the court, the limitation of enforcement by laws relating to bankruptcy, insolvency, liquidation, reorganisation, court schemes, moratoria, administration and other laws generally affecting the rights of creditors;

 

(b)                                 the time barring of claims under applicable limitation laws, the possibility that an undertaking to assume liability for or to indemnify a person against non-payment of stamp duty may be void, defences of set-off or counterclaim; and

 

(c)                                  any other general principles which are set out as qualifications as to matters of law in the legal opinions delivered to the Lender under paragraph 2 of Schedule 1 (Conditions Precedent).

 

LIBOR” means, in relation to the Loan:

 

(a)                                 the applicable Screen Rate as of the Specified Time for the currency of the Loan and for a period equal in length to the Interest Period of the Loan;

 

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(b)                                 as otherwise determined pursuant to Clause 8.2 (Unavailability of a Screen Rate), and if, in either case, that rate is less than zero, LIBOR shall be deemed to be zero.

 

Loan” means, as the context requires, the loan made or to be made under the Facility or the principal amount outstanding at any time of the loan.

 

LTV Ratio” means, on any Valuation Day, the percentage level as determined by the Lender in accordance with the following formula:

 

 

A – B – C

 

 

D

 

 

Where:

 

A

=

the principal amount of the Loan outstanding on that Valuation Day;

 

 

 

B

=

the aggregate amount of Cash Collateral on that Valuation Day;

 

 

 

C

=

the aggregate of all Market Values for all types and classes of Eligible Securities (other than the Company Shares) that comprise the Securities Collateral on that Valuation Day; and

 

 

 

D

=

the Market Value for the Company Shares on that Valuation Day.

 

Make-Whole Amount” means, in relation to any prepayment of the Loan (in whole or in part) during the Make-Whole Period, the total amount of interest (including LIBOR and the Margin) which would have accrued on the amount of the Loan being so prepaid from (and including) the date of prepayment to (and including) the last day of the Make-Whole Period.

 

Make-Whole Period” means the period commencing on the Utilisation Date to (and including) the date falling six Months following the Utilisation Date.

 

Margin” means [***] per cent. per annum.

 

Market Value” means, in respect of each type or class of Eligible Securities that comprise the Securities Collateral on any Valuation Day, an amount in US dollar as determined by the Lender in accordance with the following formula:

 

A x B

 

Where:

 

A                                  =                                         in the case of:

 

(a)         Company Shares, the Company Share Closing Price on such Valuation Day; and

 

(b)         any other type or class of Eligible Securities, the Eligible Securities Price for such other type or class of Eligible Securities on such Valuation Day.

 

B                                 =                                         the number of such type or class of Eligible Securities that are:

 

(i) subject to the first ranking Transaction Security in favour of the Lender as Securities Collateral and which Transaction Security has been registered in accordance with Clause 19.18 (Registration); and

 

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(ii) not subject to any Transfer Restrictions (other than, in the case of Eligible Securities which are Company Shares, the Existing Transfer Restrictions).

 

Material Adverse Effect” means a material adverse effect on:

 

(a)                                 the business, operations, property or financial condition of any Obligor;

 

(b)                                 the ability of any of the Obligors to perform his or its obligations under the Finance Documents; or

 

(c)                                  the validity or enforceability of, or the rights or remedies of the Lender under, the Finance Documents.

 

Maturity Date” means the date falling 24 Months following the Utilisation Date.

 

Merger Event” means, in respect of the issuer of any Eligible Securities, any:

 

(a)                                 reclassification or change of such Eligible Securities that results in a transfer of or an irrevocable commitment to transfer all such outstanding Eligible Securities to another entity or person;

 

(b)                                 consolidation, amalgamation, merger or binding share exchange of the issuer with or into another entity or person (other than a consolidation, amalgamation, merger or binding share exchange in which the issuer is the continuing entity and which does not result in a reclassification or change of any of such Eligible Securities then outstanding);

 

(c)                                  a takeover offer, tender offer, scheme of arrangement, exchange offer, solicitation, proposal or other event or offer by any entity or person to purchase or otherwise obtain 100 per cent. of such outstanding Eligible Securities that results in a transfer of or an irrevocable commitment to transfer all such shares (other than such Eligible Securities owned or controlled by such other entity or person); or

 

(d)                                 a consolidation, amalgamation, merger or binding share exchange of the issuer or its Subsidiaries with or into another entity in which the issuer is the continuing entity and which does not result in a reclassification or change of all of such outstanding Eligible Securities but results in such outstanding Eligible Securities (other than such Eligible Securities owned or controlled by such other entity) immediately prior to such event collectively representing less than 50 per cent. of such outstanding Eligible Securities immediately following such event.

 

Month” means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:

 

(a)                                 subject to paragraph (c) below, if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;

 

(b)                                 if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and

 

(c)                                  if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.

 

11



 

The above rules will apply only to the last Month of any period.

 

Nationalisation” means, in respect of the issuer of any Eligible Securities:

 

(a)                                 all such Eligible Securities (or any of such Eligible Securities which comprise the Securities Collateral) or all or substantially all of the assets of the issuer are nationalised, expropriated or are otherwise required to be transferred to any Governmental Agency; or

 

(b)                                 the authority or ability of any person to deal in, or transact in, all of such Eligible Securities (or any of such Eligible Securities which comprise the Securities Collateral) or all or substantially all of the assets of the issuer is limited or wholly or substantially curtailed by any seizure, expropriation, nationalisation, intervention, restriction or other action by or on behalf of any Governmental Agency in relation to that person or all of such Eligible Securities (or any of such Eligible Securities which comprise the Securities Collateral) or all or substantially all of the assets of the issuer.

 

Non-public Information” means information which has not been disseminated in a manner making it available to investors generally.

 

Obligors” means the Borrower and the Guarantor and “Obligor” means each one of them.

 

Participant” means each person to whom a Lender will make payments under a Participation Agreement.

 

Participation” means a fee letter, participation, sub-participation, credit derivative (including a credit default swap or credit linked note), total return swap or any other agreement between a Lender and a Participant, whether directly or indirectly, under which the Lender is obliged to make certain payments to the Participant by reference to one or more Finance Documents and/or one or more Obligors.

 

Participation Agreement” means each agreement or letter between a Lender and a Participant in respect of a Participation.

 

Party” means a party to this Agreement.

 

Pledged Company Shares” means, at any time, the Company Shares which are mortgaged and charged in favour of the Lender pursuant to the Cayman Security Agreement.

 

Pledged Eligible Securities” means, at any time, the Eligible Securities standing to the credit of the Securities Collateral Account and which are charged in favour of the Lender pursuant to the Hong Kong Security Deed.

 

Potential Adjustment Event” means any of the following:

 

(a)                                 a subdivision, consolidation or reclassification of any Eligible Securities (unless resulting in a Merger Event in respect of the issuer of such Eligible Securities), or a free distribution or dividend of any Eligible Securities to existing holders by way of bonus, capitalisation or similar issue;

 

(b)                                 a distribution, issue or dividend to existing holders of any Eligible Securities of:

 

(i)                                     such Eligible Securities;

 

(ii)                                  other share capital or securities granting the right to payment of dividends and/or the proceeds of liquidation of the issuer of such Eligible Securities

 

12



 

equally or proportionately with such payments to holders of such Eligible Securities;

 

(iii)                               share capital or other securities of another issuer acquired or owned (directly or indirectly) by the issuer of such Eligible Securities as a result of a spin-off or other similar transaction; or

 

(iv)                              any other type of securities, rights or warrants or other assets, in any case for payment (cash or other consideration) at less than the prevailing market price;

 

(c)                                  a call by the issuer of any Eligible Securities in respect of such Eligible Securities that are not fully paid;

 

(d)                                 a repurchase by the issuer of any Eligible Securities or any of its Subsidiaries of such Eligible Securities whether out of profits or capital and whether the consideration for such repurchase is cash, securities or otherwise;

 

(e)                                  in respect of the issuer of an Eligible Securities, an event that results in any shareholder rights being distributed or becoming separated from such Eligible Securities or other shares of the capital stock of such issuer pursuant to a shareholder rights plan or arrangement directed against hostile takeovers that provides upon the occurrence of certain events for a distribution of preferred stock, warrants, debt instruments or stock rights at a price below their market value, provided that any adjustment effected as a result of such an event shall be readjusted upon any redemption of such rights;

 

(f)                                   a Merger Event or Tender Offer relating to the issuer of any Eligible Securities; and/or

 

(g)                                  any other event that has had a diluting or concentrative effect on the value of any Eligible Securities,

 

in each case, as reasonably determined by the Lender.

 

PRC” means the People’s Republic of China, which for the purposes of the Finance Documents excludes Hong Kong, Macau and Taiwan.

 

Purchased Shares” shall have the meaning given to it in the Subscription Agreement.

 

Quasi-Security” means, in respect of any person, any arrangement or transaction:

 

(a)                                 which involves the sale, transfer of disposal of any of such person’s assets on terms whereby they are or may be leased to or re-acquired by such person or any of its Affiliates;

 

(b)                                 which involves the sale, transfer of disposal of any of such person’s receivables on recourse terms;

 

(c)                                  under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or

 

(d)                                 involving any other preferential arrangement having a similar effect,

 

in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset.

 

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Quotation Day” means, in relation to any period for which an interest rate is to be determined, two London business days before the first day of that period (unless market practice differs in the London interbank market for that currency, in which case the Quotation Day for that currency will be determined by the Lender in accordance with market practice in the London interbank market (and if quotations would normally be given on more than one day, the Quotation Day will be the last of those days).

 

Register of Charges” means the register of charges of the Borrower maintained in accordance with section 162 of the BVI Act.

 

Registrar of Corporate Affairs” means the Registrar of Corporate Affairs of the British Virgin Islands appointed under section 229 of the BVI Act.

 

Relevant Jurisdiction” means:

 

(a)                                 in relation to the Borrower and any other member of the Group (other than the Guarantor), (i) its jurisdiction of incorporation and (ii) any jurisdiction where it conducts its business; and

 

(b)                                 in relation to the Guarantor, (i) his jurisdiction of domicile and (ii) if different, his jurisdiction of residence; and

 

(c)                                  in relation to a Finance Document, (i) the jurisdiction of the governing law of such Finance Document, (ii) the jurisdiction whose laws govern the perfection of the Transaction Security created or expressed to be created by such Finance Document and (iii) any jurisdiction where any asset subject to or intended to be subject to the Transaction Security to be created by it is situated.

 

Repeating Representations” means each of the representations set out in Clauses 17.1 (Status) to 17.6 (Governing law and enforcement) (inclusive), 17.10 (No default) to 17.12 (Financial statements) (inclusive), 17.15 (Authorised signatures), 17.16 (Taxes on payments), 17.18 (Immunity) to 17.20 (Employee matters) (inclusive), 17.22 (Collateral), 17.23 (Securities Collateral), 17.26 (Employee Benefit Plan) to 17.33 (Anti-money Laundering) (inclusive).

 

Representative” means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.

 

Scheduled Trading Day” means, in respect of any Eligible Securities, a day on which the relevant Exchange is scheduled to be open for trading for its regular trading sessions.

 

Screen Rate” means in relation to LIBOR, the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant currency and period displayed (before any correction, recalculation or republication by the administrator) on pages LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate) or on the appropriate page of the Bloomberg screen or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters or Bloomberg. If such page or service ceases to be available, the Lender may specify another page or service displaying the relevant rate after consultation with the Borrower.

 

SEC” means the United States Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

 

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Second Top-Up Event” has the meaning given to it in paragraph (b) of Clause 20.1 (Top-Up Obligations).

 

Secured Obligations” means all money, obligations or liabilities due, owing or incurred to the Lender by the Borrower under any Finance Document at present or in the future, whether actual or contingent, whether incurred solely or jointly with any other person and whether as principal or surety, together with all interest accruing thereon and all losses incurred by the Lender in connection therewith.

 

Securities Act” means the United States Securities Act of 1933, as amended from time to time, and any successor statute.

 

Securities Collateral” means, at any time, the Pledged Eligible Securities and the Pledged Company Shares.

 

Securities Collateral Account” means the securities account with account number [***] maintained by the Borrower with the Lender (including any account which may from time to time be subsequently replaced, re-numbered or otherwise substituted) and which is subject to a first ranking Transaction Security in favour of the Lender in form and substance satisfactory to the Lender.

 

Security” means a mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.

 

Six Month Average Daily Trading Volume” means, on any date of determination, an amount in US dollars calculated in accordance with the following formula:

 

A x B

 

Where:

 

A = the average of the daily trading volume of the Company Shares on the Exchange on each Trading Day for the six Month period ending on the immediately preceding Scheduled Trading Day (excluding elements of such average daily trading volume that may be attributed to any block trade that occurs on any such Scheduled Trading Day), as determined by the Lender by reference to Bloomberg page “SINA US Equity HP” (or any successor thereto), or if such information is unavailable or is manifestly incorrect, as reasonably determined by the Lender; and

 

B = the Company Share Closing Price on the relevant Exchange as determined by the Lender by reference to Bloomberg page “SINA US Equity HP” (or any successor thereto) for the immediately preceding Scheduled Trading Day, or if such information is unavailable or is manifestly incorrect, as reasonably determined by the Lender.

 

Specified Time” means Quotation Day 11:00 a.m (London time).

 

Subsequent Top-Up Event” has the meaning given to it in paragraph (c) of Clause 20.1 (Top-Up Obligations).

 

Subscription” means the subscription by the Borrower of 11,000,000 Company Shares under and pursuant to the Subscription Agreement.

 

Subscription Agreement” means the subscription agreement dated 1 June 2015 between the Borrower and the Company.

 

Subsidiary” means in relation to any company or corporation, a company or corporation:

 

15



 

(a)                                 which is controlled, directly or indirectly, by the first mentioned company or corporation;

 

(b)                                 more than half the issued equity share capital or shares (as applicable) of which is beneficially owned, directly or indirectly, by the first mentioned company or corporation; or

 

(c)                                  which is a Subsidiary of another Subsidiary of the first mentioned company or corporation,

 

and for this purpose, a company or corporation shall be treated as being controlled by another if that other company or corporation is able to direct its affairs and/or to control the composition of its board of directors or equivalent body.

 

Tax” means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).

 

Tax Deduction” has the meaning given to such term in Clause 12.1 (Tax definitions).

 

Tender Offer” means, in respect of the issuer of any Eligible Securities, a takeover offer, tender offer, exchange offer, solicitation, proposal or other event by any entity or person to purchase or otherwise obtain exposure to 15 per cent. or more of such Eligible Securities, as reasonably determined by the Lender, based upon the making of filing with a Governmental Agency or such other information as the Lender deems relevant acting reasonably.

 

Top-Up Deadline” means, in respect of a Top-Up Event, the second Business Day immediately following the date the Top-Up Notice relating to such Top-Up Event is delivered to the Borrower.

 

Top-Up Event” means a First Top-Up Event, a Second Top-Up Event or a Subsequent Top-Up Event.

 

Top-Up Notice” means a notice substantially in the form set out in Schedule 3 (Form of Top-Up Notice).

 

Trading Disruption” means, in respect of any Eligible Securities, any suspension of or limitation imposed on trading by the relevant Exchange or other Governmental Agency relating to such Eligible Securities whether by reason of movements in price exceeding limits permitted by the relevant Exchange or other Governmental Agency or otherwise.

 

Transaction Security” means the Security created or expressed to be created in favour of the Lender pursuant to the Transaction Security Documents.

 

Transaction Security Documents” means:

 

(a)                                 the Cayman Security Agreement;

 

(b)                                 the Hong Kong Security Deed;

 

(c)                                  the document entitled “Memorandum of Charge over Assets” dated 10 August 2015 between the Borrower and Lender; and

 

(d)                                 any other document entered into by the Borrower creating or expressed to create any Security over all or any part of its assets in respect of its obligations under any of the Finance Documents.

 

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Transfer Restrictions” means, in respect to any Eligible Securities, any condition to or restriction on the ability of the holder of such Eligible Securities to sell, assign or otherwise transfer, or to grant Security over such Eligible Securities arising under:

 

(a)                                 any laws applicable to the Borrower or such Eligible Securities; or

 

(b)                                 any contract or agreement to which the Borrower is a party or that is binding on such Eligible Securities, including:

 

(i)                                     any requirement that any sale, assignment or transfer or any grant of Security over such Eligible Securities be consented to or approved by any person;

 

(ii)                                  any limitations on the type or status, financial or otherwise, of any purchaser, pledgee, assignee or transferee of such Eligible Securities;

 

(iii)                               any requirement of the delivery of any certificate, consent, agreement, opinion of counsel, notice or any other document of any person to the Company or any registrar or transfer agent for such Eligible Securities, prior to the sale, pledge, assignment or other transfer or grant of Security over such Eligible Securities;

 

(iv)                              any registration or qualification requirement or prospectus delivery requirement for such Eligible Securities (including any such requirement arising under the Securities Act); and

 

(v)                                 any legend or other notification appearing on any certificate representing such securities to the effect that any such condition or restriction exists,

 

except that the required delivery of any assignment, instruction or entitlement order from the Borrower, pledgor, assignor or transferor of such Eligible Securities, together with any evidence of the corporate or other authority of such person, shall not constitute such a condition or restriction.

 

UCC” means the United States Uniform Commercial Code (or any similar or equivalent legislation) as in effect in New York.

 

Unpaid Sum” means any sum due and payable but unpaid by an Obligor under the Finance Documents.

 

US” means the United States of America.

 

US Bankruptcy Code” means the Federal Bankruptcy Code of 1978, Title 11 of the United States Code.

 

US Tax Obligor” means:

 

(a)                                 a person which is resident for tax purposes in the US; or

 

(b)                                 a person some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes.

 

Utilisation” means the utilisation of the Facility.

 

Utilisation Date” means the date of the Utilisation, being the date on which the Loan is to be made.

 

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Utilisation Request” means a notice substantially in the form set out in Schedule 2 (Utilisation Request).

 

Valuation Day” means any Scheduled Trading Day for any Eligible Securities during the period from (and including) the Utilisation Date to (but excluding) the Maturity Date.

 

1.2                               Construction

 

(a)                                 Unless a contrary indication appears, any reference in this Agreement to:

 

(i)                                     any “Obligor” or any “Party” shall be construed so as to include its successors in title, permitted assigns and permitted transferees;

 

(ii)                                  assets” includes present and future properties, revenues and rights of every description;

 

(iii)                               a “Finance Document” or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended or restated;

 

(iv)                              including” shall be construed as “including without limitation” (and cognate expressions shall be construed similarly);

 

(v)                                 indebtedness” includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;

 

(vi)                              a “person” includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality);

 

(vii)                           a “regulation” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;

 

(viii)                        a provision of law is a reference to that provision as amended or re-enacted; and

 

(ix)                              a time of day is a reference to Hong Kong time.

 

(b)                                 Section, Clause and Schedule headings are for ease of reference only.

 

(c)                                  Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.

 

(d)                                 A Default (other than an Event of Default) is “continuing” if it has not been remedied or waived in writing and an Event of Default is “continuing” if it has not been waived in writing.

 

(e)                                  Where this Agreement specifies an amount in a given currency (the “specified currency”) “or its equivalent”, the “equivalent” is a reference to the amount of any other currency which, when converted into the specified currency utilising the Lender’s spot rate of exchange for the purchase of the specified currency with that other currency at or about 11 a.m. on the relevant date, is equal to the relevant amount in the specified currency.

 

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1.3                               Currency Symbols and Definitions

 

US$” and “US dollar” denote the lawful currency of the United States of America.

 

2.                                      THE FACILITY

 

Subject to the terms of this Agreement, the Lender makes available to the Borrower a US dollar denominated term loan facility in an amount equal to the Commitment.

 

3.                                      PURPOSE

 

3.1                               Purpose

 

(a)                                 All amounts borrowed by the Borrower under the Facility shall be applied towards (i) payment of fees, costs and expenses payable by the Borrower pursuant to Clause 16.1(b) (Transaction expenses) and/or (ii) funding the Subscription.

 

(b)                                 The Borrower agrees to, and irrevocably and unconditionally authorises the Lender to disburse the Loan (after deducting the amount (if any) which the Borrower directs the Lender to apply towards payment of fees, costs and expenses payable by the Borrower pursuant to Clause 16.1(b) (Transaction expenses)) to the Company as part of the purchase price for the subscription of the Purchased Shares in a manner consistent with the Subscription Agreement and the Issuer Acknowledgement Letter.

 

3.2                               Monitoring

 

The Lender is not bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.

 

4.                                      CONDITIONS OF UTILISATION

 

4.1                               Initial conditions precedent

 

The Borrower may not deliver the Utilisation Request unless the Lender has received all of the documents and other evidence listed in Schedule 1 (Conditions Precedent) in form and substance satisfactory to the Lender. The Lender shall notify the Borrower promptly upon being so satisfied.

 

4.2                               Further conditions precedent

 

The Lender will be obliged to comply with 5.4 (Availability of Loan) only if on the date of the Utilisation Request and on the proposed Utilisation Date:

 

(a)                                 no Default is continuing or would result from the proposed Loan and none of the circumstances described in Clause 7.3 (Mandatory prepayment of Loan)) has occurred;

 

(b)                                 the Repeating Representations to be made by the Borrower and the representations to be made by the Guarantor in the Guarantee which are expressed to be repeated are true in all material respects;

 

(c)                                  the Borrower has provided evidence that it has paid (or will have paid by the Utilisation Date) to the Company the Borrower Contribution Amount in a manner consistent with the Subscription Agreement;

 

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(d)                                 the Lender is satisfied that upon giving effect to the proposed Utilisation, the Purchased Shares shall immediately be mortgaged and charged in favour of the Lender as Pledged Company Shares;

 

(e)                                  the Company and the Guarantor confirm that each of their conditions to Closing (as defined in the Subscription Agreement) as set forth in Section 1.3 of the Subscription Agreement have been satisfied or waived (or will be satisfied or waived) in accordance with the terms of the Subscription Agreement other than receipt by the Company of the net proceeds of the Loan (after deducting the amount (if any) which the Borrower directs the Lender to apply towards payment of fees, costs and expenses payable by the Borrower pursuant to Clause 16.1(b) (Transaction expenses)); and

 

(f)                                   the Borrower has provided to the Lender a certified copy of the Borrower’s updated register of members indicating that 10,000 Class B ordinary shares of the Borrower of US$0.0001 par value each have been issued and allotted to the Guarantor (or evidence that a certified copy of such updated register of members will be provided to the Lender on the Utilisation Date.).

 

4.3                               Single Loan

 

There shall not be more than one Loan.

 

5.                                      UTILISATION

 

5.1                               Delivery of a Utilisation Request

 

The Borrower may utilise the Facility by delivery to the Lender of a duly completed Utilisation Request not later than 11 a.m. one Business Days prior to the relevant Utilisation Date (or such shorter period as the Lender may agree).

 

5.2                               Completion of a Utilisation Request

 

(a)                                 A Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:

 

(i)                                     the proposed Utilisation Date is a Business Day within the Availability Period; and

 

(ii)                                  the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount).

 

(b)                                 Only one Loan may be requested in the Utilisation Request.

 

5.3                               Currency and amount

 

(a)                                 The currency specified in the Utilisation Request must be US dollar.

 

(b)                                 The amount of the proposed Loan must be an amount equal to or less than the Commitment.

 

5.4                               Availability of Loan

 

(a)                                 If the conditions set out in Clause 4 (Conditions of Utilisation) and 5.1 (Delivery of a Utilisation Request) to 5.3 (Currency and amount) above have been met, the Lender shall make the proposed Loan available on the Utilisation Date through its Facility Office.

 

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(b)                 The amount payable by the Lender to the Borrower (or, as the case may be at the direction of the Borrower in accordance with Clause 3.1(b)) shall be an amount equal to the proposed Loan (after deducting the amount (if any) which the Borrower directs the Lender to apply towards payment of fees, costs and expenses payable by the Borrower pursuant to Clause 16.1(b) (Transaction expenses)).

 

5.5                               Cancellation of Commitment

 

The Commitment which, at that time, is unutilised shall be immediately cancelled at 5 p.m. on the last day of the Availability Period.

 

6.                                           REPAYMENT

 

6.1                               Repayment of Loan

 

The Borrower shall repay the Loan in full, including all accrued interest, and all other amounts owing under the Finance Documents, on the Maturity Date.

 

6.2                               Reborrowing

 

The Borrower may not reborrow any part of the Facility which is repaid.

 

7.                                           PREPAYMENT AND CANCELLATION

 

7.1                               Illegality

 

If, at any time, it is or will become unlawful in any applicable jurisdiction for the Lender to perform any of its obligations as contemplated by this Agreement or to fund the Loan:

 

(a)                                 the Lender shall promptly notify the Borrower upon becoming aware of that event;

 

(b)                                 upon the Lender notifying the Borrower, the Commitment will be immediately cancelled; and

 

(c)                                  the Borrower shall repay the Loan on the last day of the Interest Period for the Loan occurring after the Lender has notified the Borrower or, if earlier, the date specified by the Lender in the notice delivered to the Borrower (being no earlier than the last day of any applicable grace period permitted by law).

 

7.2                               Voluntary prepayment of Loan

 

The Borrower may, if it gives the Lender not less than 7 days’ (or such shorter period as the Lender may agree) prior notice, prepay the whole or any part of the Loan (but if in part, being an amount that reduces the amount of the Loan by a minimum of US$10,000,000 and an integral multiple of US$5,000,000 thereafter).

 

7.3                               Mandatory prepayment of Loan

 

If the Lender determines that:

 

(a)                                 the Six Month Average Daily Trading Volume on any Scheduled Trading Day for the Company Shares is less than US$30,000,000;

 

(b)                                 a Borrower Change of Control occurs;

 

(c)                                  each of five or more consecutive Scheduled Trading Days for the Company Shares is a Disrupted Day;

 

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(d)                                      the Company Shares have ceased (or will cease), to be listed, traded or publicly quoted on the relevant Exchange for any reason, or the Company Shares otherwise cease to be readily transferable by normal commercial means;

 

(e)                                       a Nationalisation occurs in respect of the Company (provided that any such event shall be deemed to occur on the earlier of the ex-date and the announcement date, or such other date as the Lender reasonably determines);

 

(f)                                        a corporate action, legal proceeding or other procedure or step described in Clause 21.7 (Insolvency proceedings) or creditors’ process described in Clause 21.8 (Creditors’ process) has been taken in relation to the Company, or a circumstance described in Clause 21.6 (Insolvency) applies to the Company;

 

(g)                                       a criminal proceeding or criminal investigation is instituted or commenced by any Governmental Agency against the Guarantor, the Borrower, the Company or any non-independent director of the Company;

 

(h)                                      any qualification on the audited annual financial statements of the Company provided that if the Company, at any time, audits any other financial statements or accounts other than its annual financial statement, any qualification on such accounts or financial statements would also be a mandatory prepayment event pursuant to this Clause 7.3(h);

 

(i)                                          any failure by the Company to file all reports it is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act or any equivalent provisions under any other relevant jurisdiction; or

 

(j)                                         any failure by the Company to comply with the information requirements of Rule 144(c)(1)(i) under the Securities Act) or any equivalent laws or regulations under any other relevant jurisdiction,

 

then

 

(i)                                (without prejudice to the rights of the Lender under paragraphs (B) and (C) below) each Party shall promptly notify the other Party upon becoming aware of the relevant event;

 

(ii)                             in the event the Commitment has not been utilised, the Lender may, by notice to the Borrower, cancel the Commitment, whereupon the Facility will be cancelled; and

 

(iii)                          in the event the Commitment has been utilised, the Lender may, by notice to the Borrower, declare the whole Loan, together with all other amounts owing under the Finance Documents (including, without limitation, any accrued interest and the Lender’s Break Costs, if any), to be immediately due and payable, whereupon all such outstanding amounts will become immediately due and payable.

 

7.4                               Accrued Interest and Make-Whole Amount

 

(a)                                      Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid.

 

(b)                                      In addition, on any prepayment of all of any part of the Loan pursuant to Clause 7.2 (Voluntary prepayment of Loan) during the Make-Whole Period, the Borrower shall

 

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also pay to the Lender, on the date of any such prepayment, the relevant Make-Whole Amount relating to such Prepayment Event.

 

7.5                               Restrictions

 

(a)                                 Any notice of cancellation or prepayment given by any Party under this Clause 7 (Prepayment and cancellation) shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.

 

(b)                                 The Borrower may not reborrow any part of the Facility which is prepaid.

 

(c)                                  The Borrower shall not repay or prepay all or any part of the Loan or reduce the Commitment except at the times and in the manner expressly provided for in this Agreement.

 

(d)                                 If the Commitment is reduced in accordance with this Agreement, the amount of such reduction may not be subsequently reinstated.

 

(e)                                  If all or part of the Loan is repaid or prepaid an amount of the Commitment (equal to the amount of the Loan which is repaid or prepaid) will be deemed to be cancelled on the date of repayment or prepayment.

 

8.                                      INTEREST

 

8.1                               Calculation of interest

 

The rate of interest on the Loan for each Interest Period is the percentage rate per annum which is the aggregate of the applicable:

 

(a)                                 Margin; and

 

(b)                                 LIBOR.

 

8.2                               Unavailability of a Screen Rate

 

(a)                                 Interpolated Screen Rate: If no Screen Rate is available for LIBOR for the Interest Period of the Loan, the applicable LIBOR shall be the Interpolated Screen Rate for a period equal in length to the Interest Period of the Loan.

 

(b)                                 Cost of funds: If paragraph (a) above applies but no Interpolated Screen Rate is available there shall be no LIBOR for the Loan and the rate of interest on the Loan or the relevant Interest Period shall be the percentage rate per annum which is the sum of:

 

(i)                                the Margin; and

 

(ii)                             the rate notified by the Lender to the Borrower to be that which expresses as a percentage rate per annum the cost to the Lender of funding the Loan from whatever source it may reasonably select.

 

8.3                               Market disruption

 

If before close of business in London on the Quotation Day for the relevant Interest Period the Borrower receives notifications from the Lender that the cost to it of funding the Loan from whatever source it may reasonably select would be in excess of LIBOR then there shall be no

 

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LIBOR for that Loan and paragraph (b) of Clause 8.2 (Unavailability of a Screen Rate) shall apply to the Loan for the relevant Interest Period.

 

8.4                               Alternative basis of interest

 

(a)                                 If Clause 8.3 (Market disruption) applies and the Lender or the Borrower so requires, the Lender and the Borrower shall enter into negotiations (for a period of not more than thirty days) with a view to agreeing a substitute basis for determining the rate of interest.

 

(b)                                 For the avoidance of doubt, in the event that no substitute basis is agreed at the end of the thirty day period, the rate of interest shall determined in accordance with paragraph (b) of Clause 8.2 (Unavailability of a Screen Rate).

 

8.5                               Payment of interest

 

The Borrower shall pay accrued interest on the Loan on the last day of each Interest Period.

 

8.6                               Default interest

 

(a)                If the Borrower fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the Unpaid Sum from the due date to the date of actual payment (both before and after judgment) at a rate which is, subject to paragraph (b) below, [***] per cent. higher than the rate which would have been payable if the Unpaid Sum had, during the period of non-payment, constituted the Loan in the currency of the Unpaid Sum for successive Interest Periods, each of a duration selected by the Lender (acting reasonably). Any interest accruing under this Clause 8.6 (Default interest) shall be immediately payable by the Borrower on demand by the Lender.

 

(b)                  If any Unpaid Sum consists of all or part of the Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:

 

(i)                                     the first Interest Period for that Unpaid Sum shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and

 

(ii)                                  the rate of interest applying to the Unpaid Sum during that first Interest Period shall be [***] per cent. higher than the rate which would have applied if the Unpaid Sum had not become due.

 

(c)                 Default interest (if unpaid) arising on an Unpaid Sum will be compounded with the Unpaid Sum at the end of each Interest Period applicable to that Unpaid Sum but will remain immediately due and payable.

 

8.7                               Notification of rates of interest

 

The Lender shall promptly notify the Borrower of the determination of a rate of interest under this Agreement.

 

9.                                      INTEREST PERIODS

 

9.1                               Interest Periods

 

(a)                                 Each Interest Period for the Loan shall be three Months.

 

(b)                                 An Interest Period for the Loan shall not extend beyond the Maturity Date.

 

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(c)                                  Each Interest Period for the Loan shall start on the Utilisation Date or (if the Loan has already been made) on the last day of the preceding Interest Period of such Loan.

 

9.2                               Non-Business Days

 

If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).

 

10.                               BREAK COSTS

 

(a)                                 Subject to paragraph (b) below, the Borrower shall, within three Business Days of demand by the Lender, pay to the Lender its Break Costs attributable to all or any part of the Loan or Unpaid Sum being paid by the Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum.

 

(b)                                 No Break Costs shall be payable in connection with any prepayment under this Agreement where a Make-Whole Amount is payable in respect of such prepayment.

 

11.                               [INTENTIONALLY LEFT BLANK]

 

12.                               TAX GROSS-UP AND INDEMNITIES

 

12.1                        Tax definitions

 

(a)                                 In this Clause 12:

 

Tax Credit” means a credit against, relief or remission for, or repayment of any Tax.

 

Tax Deduction” means a deduction or withholding for or on account of Tax from a payment under a Finance Document, other than a FATCA Deduction.

 

Tax Payment” means an increased payment made by the Borrower to the Lender under Clause 12.2 (Tax gross-up) or a payment under Clause 12.3 (Tax indemnity).

 

(b)                                 Unless a contrary indication appears, in this Clause 12 a reference to “determines” or “determined” means a determination made in the absolute discretion of the person making the determination.

 

12.2 Tax gross-up

 

(a)                                 All payments to be made by the Borrower to the Lender under the Finance Documents shall be made free and clear of and without any Tax Deduction unless the Borrower is required to make a Tax Deduction, in which case the sum payable by the Borrower (in respect of which such Tax Deduction is required to be made) shall be increased to the extent necessary to ensure that the Lender receives a sum net of any deduction or withholding equal to the sum which it would have received had no such Tax Deduction been made or required to be made.

 

(b)                                 The Borrower shall promptly upon becoming aware that it must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Lender accordingly. Similarly, the Lender shall notify the Borrower on becoming so aware in respect of a payment payable to the Lender.

 

(c)                                  If the Borrower is required to make a Tax Deduction, that it shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.

 

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(d)                          Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Borrower shall deliver to the Lender entitled to the payment evidence reasonably satisfactory to the Lender that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.

 

12.3 Tax indemnity

 

(a)                  Without prejudice to Clause 12.2 (Tax gross-up), if the Lender is required to make any payment of or on account of Tax on or in relation to any sum received or receivable under the Finance Documents (including any sum deemed for purposes of Tax to be received or receivable by the Lender whether or not actually received or receivable) or if any liability in respect of any such payment is asserted, imposed, levied or assessed against the Lender, the Borrower shall, within three Business Days of demand of the Lender, indemnify the Lender against such payment or liability, together with any interest, penalties, costs and expenses payable or incurred in connection therewith, provided that this Clause 12.3 shall not apply to:

 

(i)                                     any Tax imposed on and calculated by reference to the net income actually received or receivable by the Lender (but, for the avoidance of doubt, not including any sum deemed for purposes of Tax to be received or receivable by the Lender but not actually receivable) by the jurisdiction in which the Lender is incorporated;

 

(ii)                                  any Tax imposed on and calculated by reference to the net income of the Facility Office of the Lender actually received or receivable by the Lender (but, for the avoidance of doubt, not including any sum deemed for purposes of Tax to be received or receivable by the Lender but not actually receivable) by the jurisdiction in which its Facility Office is located;

 

(iii)                               any loss, liability or cost which is compensated for by an increased payment under Clause 12.2 (Tax gross-up); or

 

(iv)                              any such loss, liability or cost relates to a FATCA Deduction required to be made by a Party.

 

(b)                                 If the Lender intends to make a claim under paragraph (a), it shall notify the Borrower of the event giving rise to the claim.

 

12.4 Tax credit

 

If the Borrower makes a Tax Payment and the Lender determines that:

 

(a)                                 a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and

 

(b)                                 it has obtained and utilised that Tax Credit,

 

the Lender shall pay an amount to the Borrower which the Lender determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by the Borrower.

 

12.5 Stamp taxes

 

The Borrower shall:

 

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(a)                                 pay all stamp duty, registration and other similar Taxes payable in respect of any Finance Document, and

 

(b)                                 within three Business Days of demand, indemnify the Lender against any cost, loss or liability the Lender incurs in relation to any stamp duty, registration or other similar Tax paid or payable in respect of any Finance Document.

 

12.6 Indirect tax

 

(a)                                 All amounts set out or expressed in a Finance Document to be payable by any Party to the Lender shall be deemed to be exclusive of any Indirect Tax. If any Indirect Tax is chargeable on any supply made by the Lender to the Borrower in connection with a Finance Document, the Borrower shall pay to the Lender (in addition to and at the same time as paying the consideration) an amount equal to the amount of the Indirect Tax.

 

(b)                                 Where a Finance Document requires the Borrower to reimburse the Lender for any costs or expenses, the Borrower shall also at the same time pay and indemnify the Lender against all Indirect Tax incurred by the Lender in respect of the costs or expenses to the extent the Lender reasonably determines that it is not entitled to credit or repayment in respect of the Indirect Tax.

 

12.7 FATCA Information

 

(a)                                 Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by another Party:

 

(i)                                     confirm to that other Party whether it is:

 

(A)                               a FATCA Exempt Party; or

 

(B)                               not a FATCA Exempt Party;

 

(ii)                                  supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party’s compliance with FATCA; and

 

(iii)                               supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party’s compliance with any other law, regulation, or exchange of information regime.

 

(b)                                 If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.

 

(c)                                  Paragraph (a) above shall not oblige the Lender to do anything, and paragraph (a)(iii) above shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of:

 

(i)                                     any law or regulation;

 

(ii)                                  any fiduciary duty; or

 

(iii)                               any duty of confidentiality.

 

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(d)                                 If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i) or (ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.

 

12.8 FATCA Deduction

 

(a)                                 Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.

 

(b)                                 Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment.

 

13.                               INCREASED COSTS

 

13.1 Increased Costs

 

(a)                                 Subject to Clause 13.3 (Exceptions) the Borrower shall, within three Business Days of a demand by the Lender, pay to the Lender the amount of any Increased Costs incurred by the Lender or any of its Affiliates as a result of:

 

(i)                                     the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation;

 

(ii)                                  compliance with any law or regulation made after the date of this Agreement; or

 

(iii)                               the implementation or application of or compliance with Basel III or CRD IV.

 

The terms “law” and “regulation” in this paragraph (a) shall include any law or regulation concerning capital adequacy, prudential limits, liquidity, reserve assets or Tax.

 

(b)                                 In this Agreement:

 

(i)                                     Basel III” means:

 

(A)                               the agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement, standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated;

 

(B)                               the rules for global systemically important banks contained in “Global systemically important banks: assessment methodology and the additional loss absorbency requirement - Rules text” published by the

 

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Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and

 

(C)                               any further guidance or standards published by the Basel Committee on Banking Supervision relating to “Basel III”;

 

(ii)           “CRD IV” means:

 

(A)                               Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU No 648/2012); and

 

(B)                               Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC; and

 

(iii)          “Increased Costs” means:

 

(A)                               a reduction in the rate of return from the Facility or on the Lender’s (or its Affiliate’s) overall capital (including as a result of any reduction in the rate of return on capital brought about by more capital being required to be allocated by the Lender);

 

(B)                               an additional or increased cost; or

 

(C)                               a reduction of any amount due and payable under any Finance Document,

 

which is incurred or suffered by the Lender or any of its Affiliates to the extent that it is attributable to the undertaking, funding or performance by the Lender of any of its obligations under any Finance Document.

 

13.2 Increased cost claims

 

(a)                            The Lender intending to make a claim pursuant to Clause 13.1 (Increased costs) shall notify the Borrower of the event giving rise to the claim.

 

(b)                            The Lender shall, as soon as practicable after a demand by the Borrower, provide a certificate confirming the amount of its Increased Costs.

 

13.3 Exceptions

 

(a)         Clause 13.1 (Increased costs) does not apply to the extent any Increased Cost is:

 

(i)                                     attributable to a Tax Deduction required by law to be made by the Borrower;

 

(ii)                                  compensated for by Clause 12.3 (Tax indemnity) (or would have been compensated for under Clause 12.3 (Tax indemnity) but was not so compensated solely because the exclusion in paragraph (a) of Clause 12.3 (Tax indemnity) applied);

 

(iii)                               attributable to the wilful breach by the Lender or its Affiliates of any law or regulation; or

 

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(iv)                              attributable to a FATCA Deduction required to be made by a Party.

 

(b)                                 In this Clause 13.3, a reference to a “Tax Deduction” has the same meaning given to the term in Clause 12.1 (Tax definitions)

 

14.          MITIGATION BY THE LENDER

14.1 Mitigation

 

(a)                                 The Lender shall, in consultation with the Borrower, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1 (Illegality), Clause 12 (Tax gross-up and indemnities) or Clause 13 (Increased Costs), including:

 

(i)                                providing such information as the Borrower may reasonably request in order to permit the Borrower to determine its entitlement to claim any exemption or other relief (whether pursuant to a double taxation treaty or otherwise) from any obligation to make a Tax Deduction; and

 

(ii)                             in relation to any circumstances which arise following the date of this Agreement, transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.

 

(b)                                 Paragraph (a) above does not in any way limit the obligations of the Borrower under the Finance Documents.

 

14.2 Limitation of liability

 

(a)                                 The Borrower shall promptly indemnify the Lender for all costs and expenses reasonably incurred by the Lender as a result of steps taken by it under Clause 14.1 (Mitigation).

 

(b)                                 The Lender is not obliged to take any steps under Clause 14.1 (Mitigation) if, in the opinion of the Lender (acting reasonably), to do so might be prejudicial to it.

 

14.3 Conduct of business by the Lender No

 

provision of this Agreement will:

 

(a)                                 interfere with the right of the Lender to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;

 

(b)                                 oblige the Lender to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or

 

(c)                                  oblige the Lender to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.

 

15.          OTHER INDEMNITIES

15.1 Currency indemnity

 

(a)                                 If any sum due from the Borrower under the Finance Documents (a “Sum”), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the “First Currency”) in which that Sum is payable into another currency (the “Second Currency”) for the purpose of:

 

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(i)                                     making or filing a claim or proof against the Borrower; or

 

(ii)                                  obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,

 

the Borrower shall as an independent obligation, within three Business Days of demand, indemnify the Lender to whom that Sum is due against any cost, loss or liability arising out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt of that Sum.

 

(c)                                  The Borrower waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.

 

15.2 Other indemnities

 

The Borrower shall, within three Business Days of demand, indemnify the Lender against any cost, loss or liability incurred by the Lender as a result of:

 

(a)                                 the occurrence of any Event of Default;

 

(b)                                 the information produced or approved by any Obligor being or being alleged to be misleading and/or deceptive in any respect;

 

(c)                                  any enquiry, investigation, subpoena (or similar order) or litigation with respect to any Obligor or with respect to the transactions contemplated or financed under this Agreement;

 

(d)                                 a failure by an Obligor to pay any amount due under a Finance Document on its due date or in the relevant currency;

 

(e)                                  funding, or making arrangements to fund, the Loan requested by the Borrower in the Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by the Lender alone); or

 

(f)                                   the Loan (or part of the Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower.

 

15.3 Indemnity to the Lender

 

The Borrower shall promptly indemnify the Lender on a full indemnity basis against any cost, loss or liability incurred by the Lender (acting reasonably) as a result of:

 

(a)                                 investigating any event which it reasonably believes is a Default; and

 

(b)                                 acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised.

 

16.          COSTS AND EXPENSES

16.1 Transaction expenses

 

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(a)                                 Subject to Clause 16.1(b) below, each Party shall be responsible for his or its own costs and expenses (other than legal costs) incurred in connection with the negotiation, preparation, printing and execution of:

 

(i)                                     this Agreement and any other documents referred to in this Agreement; and

 

(ii)                                  any other Finance Documents executed after the date of this Agreement.

 

(b)                                 The Borrower shall be responsible for all legal fees incurred in connection with the negotiation, preparation, printing and execution of:

 

(i)                                     this Agreement and any other documents referred to in this Agreement; and

 

(ii)                                  any other Finance Documents executed after the date of this Agreement,

 

up to an aggregate amount agreed between the Lender and the Borrower prior to the date of this Agreement.

 

16.2 Amendment costs

 

Notwithstanding Clause 16.1 (Transaction expenses), if the Borrower requests an amendment, waiver or consent, the Borrower shall, within three Business Days of demand, reimburse the Lender for the amount of all costs and expenses (including legal fees) reasonably incurred by the Lender in responding to, evaluating, negotiating or complying with that request or requirement.

 

16.3 Enforcement costs

 

The Borrower shall, within three Business Days of demand, pay to the Lender the amount of all costs and expenses (including legal fees) incurred by the Lender in connection with the enforcement of, or the preservation of any rights under, any Finance Document and the Transaction Security and any proceedings instituted by or against the Lender as a consequence of taking or holding the Transaction Security or enforcing these rights.

 

17. REPRESENTATIONS

 

The Borrower makes the representations and warranties set out in this Clause 17 to the Lender on the date of this Agreement.

 

17.1        Status

 

(a)           It:

 

(i)                                     is a BVI business company with limited liability, duly incorporated, validly existing and in good standing under the laws of the British Virgin Islands; and

 

(ii)                                  has the power to own its assets and carry on its business as it is being conducted.

 

(b)           It is not a FATCA FFI or a US Tax Obligor.

 

17.2 Binding obligations

 

Subject to the Legal Reservations:

 

(a)                                 the obligations expressed to be assumed by it in each Finance Document to which it is a party are legal, valid, binding and enforceable obligations; and

 

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(b)                                 each Finance Document to which it is a party is in the proper form for its enforcement in each of its Relevant Jurisdictions.

 

17.3 Non-conflict with other obligations

 

The entry into and performance by it of, and the transactions contemplated by, the Finance Documents to which it is or will be a party and the granting of the Transaction Security do not and will not:

 

(a)           conflict with:

 

(i)                                     any law or regulation applicable to it (including any anti-fraud or reporting provisions of the Exchange Act);

 

(ii)                                  its constitutional documents;

 

(iii)                               any agreement or instrument binding upon it or any of its assets or constitute a default or termination event (however described) under any such agreement or instrument; or

 

(iv)                              any trading or corporate policy of the issuer of any Eligible Securities or other rules or regulations of such issuer applicable to it (including such issuer’s window period or other equivalent policy);

 

(b)                                 result in or require the creation or imposition of any Security upon any of its assets (other than the Transaction Security); or

 

(c)                                  give any other person any right in respect of the Collateral (other than any right granted to the Lender under a Finance Document).

 

17.4 Power and authority

 

(a)                                 It has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, the Finance Documents to which it is a party and the transactions contemplated by those Finance Documents.

 

(b)                                 No limit on its powers will be exceeded as a result of the borrowing, grant of security or giving of indemnities contemplated under the Finance Documents.

 

17.5 Validity and admissibility in evidence

 

(a)           All Authorisations required or desirable:

 

(i)                                     to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party;

 

(ii)                                  to make the Finance Documents to which it is a party admissible in evidence in each of its Relevant Jurisdictions; and

 

(iii)                               to enable it to create the Transaction Security and to ensure that the Transaction Security has the priority and ranking it is expressed to have

 

have been obtained or effected and are in full force and effect.

 

(b)                                 All Authorisations necessary for the conduct of its business, trade and ordinary activities and which are material have been obtained or effected and are in full force and effect.

 

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17.6 Governing law and enforcement

 

(a)           Any:

 

(i)                                     agreement as to the governing law of any Finance Document;

 

(ii)                                  irrevocable submission under the Finance Documents to the jurisdiction to which it is stated to be subject; and

 

(iii)                               agreement not to claim any immunity to which it or its assets may be entitled, will be recognised and enforced in each of its Relevant Jurisdictions.

 

(b)                                 Subject to the Legal Reservations, any judgment obtained in Hong Kong or Cayman Islands in relation to a Finance Document will be recognised and be enforceable by the courts of each of its Relevant Jurisdictions.

 

17.7 Insolvency

 

No

 

(a)                                 corporate action, legal proceeding or other procedure or step described in Clause 21.7 (Insolvency proceedings); or

 

(b)                                 creditors’ process described in Clause 21.8 (Creditors’ process),

 

has been taken, or to its knowledge, threatened in relation to an Obligor and none of the circumstances described in Clause 21.6 (Insolvency) applies to him or it.

 

17.8 Deduction of Tax

 

It is not required to make any deduction for or on account of Tax from any payment it may make under any Finance Document to which it is a party.

 

17.9 No filing or stamp taxes

 

Subject to any matters mentioned in any legal opinion delivered by the Lender under paragraph 2 of Schedule 1 (Condition Precedent), under the law of each of its Relevant Jurisdiction, it is not necessary that the Finance Documents be filed, recorded or enrolled with any court or other authority in that jurisdiction or that any stamp, registration or similar tax be paid on or in relation to the Finance Documents or the transactions contemplated by the Finance Documents.

 

17.10 No default

 

(a)                                 No Event of Default is continuing or might reasonably be expected to result from the making of any Utilisation or the entry into, the performance of, or any transaction contemplated by, any Finance Document.

 

(b)                                 No other event or circumstance is outstanding which constitutes a default or a termination event (however described) under any other agreement or instrument which is binding on it or to which its assets are subject which might have a Material Adverse Effect.

 

17.11 No misleading information

 

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(a)                                      All information supplied by or on behalf of an Obligor (or any of his or its respective advisers or representatives) to the Lender (or any advisers or representatives thereof) for the purpose of the Finance Documents was true, complete and accurate in all material respects as at the date it was given and was not misleading in any respect.

 

(b)                                      Each expression or opinion, expectation, intention or policy provided by an Obligor is made after careful consideration and enquiry and is believed by the relevant Obligor to be fair and reasonable as at the date at which it is stated to be given and can be properly supported.

 

(c)                                       As at the date the relevant information is given, nothing has occurred or been omitted from the information referred to in paragraphs (a) and (b) above and no information has been given or withheld that results in such information being untrue or misleading in any material respect.

 

17.12 Financial statements

 

(a)                                      Its financial statements most recently supplied to the Lender were prepared in accordance with GAAP consistently applied save to the extent expressly disclosed in such financial statements.

 

(b)                                      Its financial statements most recently supplied to the Lender give a true and fair view and fairly represent its financial condition and operations during the relevant financial period save to the extent expressly disclosed in such financial statements.

 

(c)                                       There has been no material adverse change in its business or financial condition since the date of the most recent financial statements delivered to the Lender under Clause 18 (Information undertakings).

 

17.13 Pari passu ranking

 

(a)                                      Each Transaction Security Document creates (or, once entered into, will create) in favour of the Lender the Security which it is expressed to create with the ranking and priority it is expressed to have.

 

(b)                                      Its payment obligations under the Finance Documents to which it is a party rank at least pari passu with the claims of all of its other unsecured and unsubordinated creditors except for obligations mandatorily preferred by law applying to companies generally.

 

17.14 No proceedings pending or threatened

 

(a)                                      No litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency which, if adversely determined, might reasonably be expected to have a Material Adverse Effect have (to the best of its knowledge and belief (having made due and careful enquiry)) been started or threatened against it.

 

(b)                                      No judgment or order of a court, arbitral tribunal or other tribunal or any order or sanction of any Governmental Agency which might reasonably be expected to have a Material Adverse Effect has (to the best of its knowledge and belief (having made due and careful enquiry)) been made against it.

 

17.15 Authorised signatures

 

Any person specified as its authorised signatory under Schedule 1 (Conditions Precedent) (as amended by any notice under paragraph (e) of Clause 18.3) or paragraph (e) of Clause 18.3

 

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(Information: miscellaneous) is authorised to sign the Utilisation Request and other notices on its behalf.

 

17.16 Taxes on payments

 

(a)                                 It has duly and punctually paid and discharged all Taxes imposed upon it or its assets within the time period allowed without incurring penalties.

 

(b)                                 It is not overdue in the filing of any Tax returns.

 

(c)                                  No claims or investigations by any Tax authority are being or are reasonably likely to be made or conducted against it which are reasonably likely to result in a liability of or claim against it is to pay any material amount of or in respect of Tax.

 

17.17 Financial Indebtedness and Security

 

(a)                                 It has no Financial Indebtedness outstanding which is prohibited by the terms of this Agreement.

 

(b)                                 No Security exists over the whole or any part of its assets which is prohibited under this Agreement.

 

17.18 Immunity

 

(a)                                 The execution by it of each Finance Document to which it is a party constitutes, and the exercise by it of its rights and performance of its obligations under each such Finance Document constitutes, private and commercial acts performed for private and commercial purposes.

 

(b)                                 It is not be entitled to claim immunity from suit, execution, attachment or other legal process in any proceedings taken in each of its Relevant Jurisdictions in relation to any Finance Document to which it is a party.

 

17.19 No breach of laws

 

(a)                                 It has not breached any law or regulation which breach has or could reasonably be expected to have a Material Adverse Effect.

 

(b)                                 It has not breached any laws or regulations with respect to market abuse, insider dealing, market manipulation and/or disclosure of interests in or relating to any Eligible Securities.

 

17.20 Employee matters

 

It does not have, and has not had, any employee.

 

17.21 Borrower

 

(a)                                 As at the date of this Agreement, 100 per cent. of its issued shares is beneficially owned by the Guarantor, free and clear of any Security and any other third party interests, and the Guarantor possesses the sole power to direct and cause the direction of its management and policies.

 

(b)                                 It does not have any Subsidiary.

 

(c)                                  It has not traded or incurred any liabilities or commitments (actual or contingent, present or future) other than liabilities:

 

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(i)            that arise in the ordinary course of acting as a holding company;

 

(ii)           in connection with the Finance Documents to which it is a party; and

 

(iii)          which have been discharged.

 

(d)                            Its only assets are cash, Eligible Securities, the Cash Collateral Account, the Securities Collateral Account, its rights under the Finance Documents and any other rights permitted under Clause 19.16 (Holding Company).

 

(e)                             It is not registered as a non-Hong Kong company under Part 16 of the Companies Ordinance (Chapter 622 of the Laws of Hong Kong).

 

17.22 Collateral

 

(a)                            It is the sole legal and beneficial owner of the Collateral (subject to the Transaction Security).

 

(b)                            It has not created or allowed to exist any Security over any of the Collateral (other than arising under the Transaction Security).

 

17.23 Securities Collateral

 

(a)                            The Securities Collateral are validly issued, fully paid and not subject to any option to purchase or similar rights.

 

(b)                            The Securities Collateral are not subject to any shareholders’ agreement or any voting or other contractual restrictions (other than, in the case of the Pledged Company Shares, as set out in the Subscription Agreement).

 

(c)                             The Securities Collateral are not subject to any Transfer Restriction whether in the hands of the Borrower or the Lender exercising its rights with respect thereto under the Finance Documents (other than, in the case of the Pledged Company Shares, the Existing Transfer Restrictions).

 

(d)                            The Securities Collateral (other than the Company Shares) are in book-entry format held through a Clearance System.

 

17.24 Subscription Agreement

 

(a)                            The Subscription Agreement is in full force and effect and is the legally binding, valid and enforceable obligation of each party thereto.

 

(b)                            The Subscription Agreement contains all the terms of the subject matter to which it relates, and there are no other dealings between the parties thereto that affect the Subscription Agreement.

 

(c)                             There has been no amendment, variation, novation, supplement, superseding, waiver or termination of any term of the Subscription Agreement since the date the Subscription Agreement was first entered into.

 

(d)                            The entry into and performance by the Guarantor, the Borrower and the Company of, and the transactions contemplated by, the Subscription Agreement do not and will not conflict with:

 

(i)                    any law or regulation applicable to the Guarantor, the Borrower or the Company;

 

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(ii)                                  the constitutional documents of the Borrower and the Company;

 

(iii)                               any agreement or instrument binding upon the Guarantor, the Borrower or the Company or any of their respective assets or constitute a default or termination event (however described) under any such agreement or instrument; or

 

(iv)                              the applicable listing and corporate governance rules and regulations of the Exchange for the Company Shares.

 

(e)                             All Authorisations required or desirable to enable each of the Guarantor, the Borrower and the Company to lawfully to enter into, and to exercise its rights and comply with its obligations in the Subscription Agreement have been obtained or effected and are in full force and effect or will be obtained or effected and be in full force and effect on or prior to the Utilisation Date.

 

(f)                              The entry into and performance by the Borrower and the Guarantor of, and the transactions contemplated by, the Finance Documents to which he or it is or will be a party and the granting of the Transaction Security do not and will not conflict with the Subscription Agreement.

 

17.25 Material Non-public Information

 

(a)                            Entry into this Agreement and the transactions contemplated thereby will not result in any breach by the Guarantor or the Borrower of any United States Federal and state securities law (or other applicable securities law of any other relevant jurisdiction) relating to material Non-public Information with respect to the Company or any Company Shares.

 

(b)                            No information provided by or on behalf of the Borrower or the Guarantor to the Lender in connection with this Agreement constitutes material Non-public Information with respect to the Company or any Company Shares.

 

(c)                             Neither the Borrower nor the Guarantor is entering into this Agreement and the transactions contemplated thereby on the basis of any material Non-public Information with respect to the Company or any Company Shares.

 

17.26 Employee Benefit Plan

 

Neither it nor any of its ERISA Affiliate or any predecessor thereof sponsors, maintains or contributes to, or has in the past sponsored, maintained or contributed to, any Employee Benefit Plan subject to Title IV of ERISA or any multiemployer plan, as defined in Section 3(37) of ERISA.

 

17.27 Reporting Obligations

 

It has complied, and will comply, with its reporting obligations with respect to the Securities Collateral and the Finance Documents under Section 13 of the Exchange Act and the applicable securities laws of any other relevant jurisdiction, including any required filings with the SEC.

 

17.28 Bona fide loan

 

The Loan contemplated hereunder is entered into by it in good faith and at arm’s length and is a bona fide loan. The Loan is not entered into with an expectation that it would default in its obligations thereunder. The Transaction Security is a bona fide security to secure the Secured

 

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Obligations, which obligations provide for full recourse to the Borrower, and is not entered into by the Borrower with the intent of facilitating a disposition of the Securities Collateral.

 

17.29 U.S. Investment Company Act

 

It is not, and after giving effect to the transactions contemplated by the Finance Documents, will not be, required to register as an “investment company” under the Investment Company Act.

 

17.30 No Violation of Regulations of Board of Governors of Federal Reserve System

 

(a)                                 Assuming that the Lender has complied with any applicable requirements to register with the Board, it has not taken any action reasonably likely to cause the transactions contemplated by the Finance Documents to violate or result in a violation of Regulations T, U or X of the Board.

 

(b)                                 It is not a United States person or a foreign person controlled by a United States person, each within the meaning of Regulation X of the Board.

 

17.31 Governmental regulations

 

It is not subject to regulation (a) as a “public utility” under the United States Federal Power Act or (b) under any other United States or state statute or regulation prohibiting its ability to incur indebtedness incurred hereunder.

 

17.32 Anti-Corruption Law

 

(a)                                 Each member of the Group and each of his or its respective officers, directors, employees and agents is in compliance with applicable Anti-Corruption Laws.

 

(b)                                 The Group has instituted and maintained policies and procedures designed to promote and achieve compliance with Anti-Corruption Laws.

 

17.33 Anti-money Laundering

 

(a)                                 The operations of each member of the Group are, and have been, conducted at all times in compliance with applicable financial record keeping and reporting requirements and money laundering statutes in each of his or its respective Relevant Jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, “Money Laundering Laws”).

 

(b)                                 No action, suit or proceeding by or before any court or Governmental Agency or any arbitrator involving any member of the Group with respect to Money Laundering Laws is pending and, to the best of its knowledge and belief having made all reasonable enquiries, no such actions, suits or proceedings are threatened or contemplated.

 

17.34 Repetition

 

(a)                                 The Repeating Representations are deemed to be repeated by the Borrower by reference to the facts and circumstances then existing on the date of each Utilisation Request and the first day of each Interest Period.

 

(b)                                 The representations and warranties set out in Clause 17.25 (Material Non-public Information) are deemed to be made on the date the Borrower transfers any Eligible Securities to the Securities Collateral Account in accordance with paragraph (a) of

 

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Clause 20.1 (Top-Up Obligations) except that references to “the Company” shall be deemed replaced by “the issuer of any Eligible Securities (other than the Company)” and references to “the Company Shares” shall be deemed replaced by “Eligible Securities (other than the Company Shares)”.

 

18.                               INFORMATION UNDERTAKINGS

 

The undertakings in this Clause 18 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or the Commitment is in force.

 

18.1 Financial statements

 

(a)                                 The Borrower shall supply to the Lender as soon as the same become available, but in any event within 60 days after the end of each of its financial years its unaudited financial statements for that financial year.

 

(b)                                 The financial year for the Borrower shall end on 31 December of each year.

 

18.2 Requirements as to financial statements

 

(a)                                 Each set of financial statements delivered by the Borrower pursuant to Clause 18.1 (Financial statements) shall be certified by a director of the Borrower as fairly representing its financial condition as at the date as at which those financial statements were drawn up.

 

(b)                                 The Borrower shall procure that the second and any subsequent set of financial statements delivered pursuant to Clause 18.1 (Financial statements) is prepared using GAAP, accounting practices and financial reference periods consistent with those applied in the preparation of the first financial statement delivered in accordance with Clause 18.1 (Financial statements) after the date of this Agreement.

 

18.3 Information: miscellaneous

 

The Borrower shall supply to the Lender:

 

(a)                                 all documents dispatched by the Borrower to its shareholders (or any class of them) or its creditors generally at the same time as they are despatched;

 

(b)                                 promptly, any announcement, notice or other document relating specifically to the Borrower posted onto any electronic website maintained by any stock exchange on which shares in or other securities of the Borrower are listed or any electronic website required by any such stock exchange to be maintained by or on behalf of the Borrower;

 

(c)                                  promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings which are current, threatened or pending against it, and which might, if adversely determined, have a Material Adverse Effect;

 

(d)                                 promptly, such further information regarding its financial condition, business and operations as the Lender may reasonably request; and

 

(e)                                  promptly, notice of any change in authorised signatories of the Borrower signed by a director or company secretary of the Borrower accompanied by specimen signatures of any new authorised signatories.

 

18.4 Notification of default

 

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(a)                            The Borrower shall notify the Lender of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence.

 

(b)                            Promptly upon a request by the Lender, the Borrower shall supply to the Lender a certificate signed by a director on its behalf certifying that no Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it).

 

18.5 Non-Public Information

 

The Borrower shall not provide (and shall procure that the Guarantor shall not provide) the Lender with any Non-public Information with respect to the issuer of any Eligible Securities or any Eligible Securities. Concurrently with the delivery of any document or notice required to be delivered pursuant to the Finance Documents by or on behalf of the Borrower or communication by or on behalf of the Borrower in connection with the Finance Documents (each, a “Communication”), the Borrower shall be deemed to have represented that such Communication does not contain any such Non-public Information.

 

In the event of any inconsistency between this Clause 18.5 (Non-Public Information) and any other Clause of this Agreement, this Clause 18.5 (Non-Public Information) shall prevail.

 

18.6 “Know your customerchecks

 

It shall promptly upon the request of the Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Lender (including on behalf of any prospective new Lender) in order for the Lender or any prospective new Lender to conduct any “know your customer” or other similar procedures under applicable laws and regulations.

 

19.                               GENERAL UNDERTAKINGS

 

The undertakings in this Clause 19 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or the Commitment is in force.

 

19.1 Authorisations

 

The Borrower shall promptly:

 

(a)                            obtain, comply with and do all that is necessary to maintain in full force and effect; and

 

(b)                            supply certified copies to the Lender of,


any Authorisation required to:

 

(i)                                     enable it to perform its obligations under the Finance Documents;

 

(ii)                                  ensure the legality, validity, enforceability or admissibility in evidence of any Finance Document; and

 

(iii)                               carry on its business where failure to do so has or is reasonably likely to have a Material Adverse Effect.

 

19.2 Compliance with laws

 

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The Borrower shall comply in all respects with all laws to which it may be subject, if failure so to comply has or is reasonably likely to have a Material Adverse Effect.

 

19.3 Pari passu ranking

 

The Borrower shall ensure that its payment obligations under the Finance Documents rank and continue to rank at least pari passu with the claims of all of its other unsecured and unsubordinated creditors except for obligations mandatorily preferred by law applying to companies generally.

 

19.4 Negative pledge

 

The Borrower shall not create or agree to create or permit to subsist any Security or Quasi-Security on or over the whole or any part of the Collateral other than the Transaction Security.

 

19.5 Merger

 

The Borrower shall not enter into any amalgamation, demerger, merger or corporate reconstruction.

 

19.6 Change of business

 

The Borrower shall procure that no change is made to the general nature of its business as an investment holding company to acquire and hold investments and activities incidental thereto.

 

19.7 Maintenance of books and records

 

The Borrower shall maintain books and records (with respect to itself and its business) in good order.

 

19.8 Preservation of existence and assets


The Borrower shall:

 

(a)                                 maintain and preserve its corporate existence and not change its jurisdiction of incorporation; and

 

(b)                                 ensure that it has the power to own and does own its assets and carry on its business from time to time being conducted.

 

19.9 Disposals

 

The Borrower shall not (whether by a single transaction or a number of related or unrelated transactions and whether at the same time, and whether voluntary or involuntary or over a period of time) sell, transfer, lease out, lend or otherwise dispose of the whole or any part of its legal or beneficial interest in the Collateral (including for the avoidance of doubt to any of its Affiliates).

 

19.10 Acquisitions

 

(a)                                 The Borrower shall not create or establish any Subsidiary.

 

(b)                                 Except as provided in paragraph (c) below, the Borrower shall not acquire any business, shares or other ownership interests in any other person.

 

(c)                                  Paragraph (b) above does not apply to any acquisition of Eligible Securities that are credited to the Securities Collateral Account and subject to the Transaction Security.

 

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19.11 Loans and guarantees


The Borrower shall not:

 

(a)                                 make any loan or provide any form of credit or financial accommodation to, or be a creditor of any Financial Indebtedness owing by, any other person; or

 

(b)                                 give or issue, allow to be subsisting, any guarantee, indemnity or bond to or for the benefit of any person or voluntarily assume any liability (whether actual or contingent) of any other person.

 

19.12 Financial Indebtedness

 

The Borrower shall not incur any Financial Indebtedness except any Financial Indebtedness incurred pursuant to any Finance Document or any shareholder loan in respect of the Borrower Contribution Amount only provided that such shareholder loan is subordinated to all amounts outstanding under the Finance Documents from time to time on terms reasonably satisfactory to the Lender.

 

19.13 Arm’s length basis

 

The Borrower shall not enter into any transaction with any person except on terms no worse than arm’s length terms and for fair market value.

 

19.14 Use of Proceeds

 

The Borrower shall ensure that the Utilisation of the Facility will comply with the purposes set out in 3.1 (Purpose).

 

19.15 No change in issued shares in the Borrower

 

(a)                                 The Borrower shall not issue any shares to any person other than in accordance with paragraph (b) below.

 

(b)                                 The Borrower may issue shares (the “Non-Voting Shares”) provided that:

 

(i)                                     its Memorandum and Articles of Association provide that such Non-Voting Shares shall form a different class from the shares registered in the name of the Guarantor on the date of this Agreement (the “Original Shares”) and such Non-Voting Shares shall not carry any voting rights; and

 

(ii)                                  each such Non-Voting Share shall carry the same rights and entitlements (other than voting rights) as each Original Share and shall otherwise rank pari passu with each Original Share.

 

(c)                                  The Borrower shall promptly, but in any event within 5 Business Days following the issue of shares as permitted by paragraph (b) above, notify the Lender of the details of such issuance of shares and supply, or procure the supply of, a certified copy of the updated register of members of the Borrower showing the relevant person(s) as registered holder of the relevant shares and such documentation and other evidence relating to any holder of such shares as is reasonably requested by the Lender (including on behalf of any prospective new Lender) in order for the Lender or any prospective new Lender to conduct any “know your customer” or other similar procedures under applicable laws and regulations.

 

(d)                                 The Borrower shall not declare or pay any dividend on its shares without the prior written consent of the Lender.

 

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19.16 Holding Company

 

The Borrower shall not trade, carry on any business, own any assets or incur any indebtedness, liabilities or commitments (whether actual or contingent) except for:

 

(a)                            ownership of Eligible Securities;

 

(b)                            ownership of cash and investments permitted under the Finance Documents;

 

(c)                             ownership of rights in respect of any loan permitted under this Agreement;

 

(d)                            the incurrence of liabilities that arise in the ordinary course of acting as a holder of investments; and

 

(e)                             the ownership of its rights under and the incurrence of liabilities under the Finance Documents to which it is a party.

 

19.17 Eligible Securities

 

(a)                            The Borrower shall comply with all applicable reporting and disclosure requirements in connection with dealings or interests in any Eligible Securities and the Finance Documents under all applicable laws and regulations (including the reporting requirements under Section 13 of the Exchange Act).

 

(b)                            The Borrower agrees to provide the Lender with any draft filing with the U.S. Securities and Exchange Commission to be made under any applicable securities laws and regulations (including under Section 13 of the Exchange Act) at least two Business Days prior to the proposed date of filing and make any reasonable changes to the description of the Finance Documents as requested by the Lender.

 

(c)                             The Borrower will not take any action which would have the effect of placing Transfer Restrictions (other than, in the case of Pledged Company Shares, the Existing Transfer Restrictions) on any Eligible Securities.

 

19.18 Registration

 

The Borrower shall, within 5 Business Days after execution of each Transaction Security Document:

 

(a)                            create and maintain a Register of Charges (to the extent this has not already been done) in accordance with section 162 of the BVI Act;

 

(b)                            enter particulars as required by the BVI Act of the security interests created pursuant to such Transaction Security Document in the Register of Charges and immediately after entry of such particulars has been made, provide the Lender with a certified true copy of the updated Register of Charges; and

 

(c)                             effect registration, or assist the Lender in effecting registration, of the Transaction Security Document with the Registrar of Corporate Affairs pursuant to section 163 of the BVI Act by making the required filing, or assisting the Lender in making the required filing, in the approved form with the Registrar of Corporate Affairs and (if applicable) provide confirmation in writing to the Lender that such filing has been made.

 

19.19 Conditions subsequent


The Borrower shall :

 

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(a)                                 procure that the following notation be entered on the register of members of the Company immediately upon issuance of the Purchased Shares to the Borrower pursuant to the Subscription Agreement:

 

11,000,000 shares issued as fully paid up and registered in the name of NEW WAVE MMXV LIMITED are mortgaged and charged in favour of CREDIT SUISSE AG HONG KONG BRANCH pursuant to a share mortgage dated [Date], as amended from time to time.”;

 

(b)                                 by 10.00 am Eastern Standard Time on the date after the date of the issuance of the Purchased Shares, provide the Lender with an email containing a PDF copy of a book entry statement relating to the Purchased Shares from the register of members of the Company provided by the Company’s transfer agent with the annotation referred to in paragraph (a) above (with the original to follow in the mail promptly thereafter);

 

(c)                                  promptly, but in any event within 30 days after the date of this Agreement (or such longer period as is agreed by the Lender), provide the Lender with five executed, medallion signature guaranteed but undated transfer of ownership forms in the form set out in Schedule 1 of the Cayman Security Agreement; and

 

(d)                                 to the extent permitted under applicable law, use commercially reasonable efforts to cause the Company and the Company’s transfer agent to de-legend the Pledged Company Shares and deliver such shares to such accounts or sub-accounts (for further credit to the Securities Collateral Account) as may be specified by the Lender, free of restrictive legends, registered in the name of The Depository Trust Company’s nominee, maintained in the form of book entries on the books of The Depository Trust Company and allowed to be settled through The Depository Trust Company’s regular book-entry settlement services as soon as reasonably practicable on or following the date (which must be a date falling six months immediately following the date of the issuance of the Pledged Company Shares) the Lender determines (acting on the advice of its counsel) that, if an Enforcement Event (as defined in the Cayman Security Agreement) were to occur on that date, the Pledged Company Shares would be capable of being sold by it or its affiliates in a transaction exempt from the registration requirements of the Securities Act pursuant to Rule 144 under the Securities Act.

 

19.20 Further assurance

 

(a)                  The Borrower shall (and shall procure that the Guarantor will), in each case at the expense of the Borrower, promptly do all such acts or execute all such documents (including assignments, transfers, mortgages, charges, notices and instructions) as the Lender may specify (and in such form as the Lender may require in favour of the Lender or its nominee(s)) provided that prior to an Event of Default such requests will be reasonable:

 

(i)                                     to perfect the Security created or intended to be created under or evidenced by the Transaction Security Documents (which may include the execution of a mortgage, charge, assignment or other Security over all or any of the assets which are, or are intended to be, the subject of the Transaction Security) or for the exercise of any rights, powers and remedies of the Lender provided by or pursuant to the Finance Documents or by law;

 

(ii)                                  to confer on the Lender over any property and assets of the Borrower located in any jurisdiction equivalent or similar to the Security intended to be conferred by or pursuant to the Transaction Security Documents; and/or

 

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(iii)                               to facilitate the realisation of the assets which are, or are intended to be, the subject of the Transaction Security; and/or

 

(iv)                              to protect or maintain any Security conferred or intended to be conferred on the Lender by or pursuant to the Finance Documents.

 

(b)               The Borrower shall (and shall procure that the Guarantor shall) take all such action as is available to it (including making all filings and registrations) as may be necessary for the purpose of the creation, perfection, protection or maintenance of any Security conferred or intended to be conferred on the Lender by or pursuant to the Finance Documents.

 

19.21 No Impairment of Security

 

The Borrower shall not:

 

(a)                            take, or knowingly or negligently omit to take, any action which act or omission might reasonably be expected to, or would have the result of, materially impairing the security interest with respect to any Transaction Security; or

 

(b)                            grant to any person other than the Lender any interest whatsoever in the Transaction Security.

 

19.22 FATCA

 

The Borrower shall not become a FATCA FFI or a US Tax Obligor.

 

19.23 Access

 

If an Event of Default is continuing or the Lender reasonably suspects an Event of Default is continuing or may occur, the Borrower shall permit the Lender and/or accountants or other professional advisers and contractors of the Lender free access at all reasonable times and on reasonable notice at the risk and cost of the Borrower to the premises, assets, books, accounts and records of the Borrower and meet and discuss matters with the senior management of the Borrower.

 

19.24 Subscription Agreement

 

Except with the prior written consent of the Lender, the Borrower shall ensure that it does not:

 

(a)                            amend, supplement, vary or waive (or agree to amend, supplement, vary or waive) any provision of the Subscription Agreement;

 

(b)                            exercise any right to rescind, cancel or terminate the Subscription Agreement;

 

(c)                             release any counterparty from any obligations under the Subscription Agreement;

 

(d)                            waive any breach or consent to any act or omission which would otherwise constitute such a breach by any counterparty to the Subscription Agreement; or

 

(e)                             novate, transfer or assign any of its rights (or permit any counterparty to novate, transfer or assign any of its rights) under the Subscription Agreement.

 

19.25 Environmental and Social Matters

 

(a)                                   The Borrower must ensure that each member of the Group is and continues to be in compliance with all Environmental or Social Laws and Environmental or Social

 

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Approvals applicable to it, where failure to do so (i) has or is reasonably likely to have a Material Adverse Effect; or (ii) would or is reasonably likely to result in any impact on the reputation of the Lender arising out of or in connection with any negative publicity or anticipated negative publicity (as determined by the Lender in its sole discretion) regarding the Lender or any liability for the Lender.

 

(b)                                 The Borrower must, promptly upon becoming aware, notify the Lender of:

 

(i)                                     any Environmental or Social Claim current, or to its knowledge, pending or threatened; or

 

(ii)                                  any circumstances reasonably likely to result in an Environmental or Social Claim,

 

which (x) has or, if substantiated, is reasonably likely to have a Material Adverse Effect; or (y) would or, if substantiated, is reasonably likely to result in any impact on the reputation of the Lender arising out of or in connection with any negative publicity or anticipated negative publicity (as determined by the Lender in its sole discretion) regarding the Lender or any liability for the Lender.

 

(c)                                  For the purposes of this Clause:

 

(i)                                     Environmental or Social Approval” means any Authorisation required by an Environmental and Social Law.

 

(ii)                                  Environmental or Social Law” means any applicable law or regulation concerning:

 

(A)                               occupational health and safety;

 

(B)                               community welfare, and/or land or property rights;

 

(C)                               the pollution or protection of the environment; or

 

(D)                               any emission or substance which is capable of causing harm to any living organism or the environment.

 

(iii)                            “Environmental or Social Claim” means any claim by any person in connection with:

 

(A)                               a breach, or alleged breach, of an Environmental or Social Law; or

 

(B)                               any accident, fire, explosion or other event of any type involving an emission or substance which is capable of causing harm to any living organism or the environment.

 

19.26 Anti-Corruption Law

 

(a)                            The Borrower shall not (and the Borrower shall ensure that no other member of the Group will) directly or indirectly use the proceeds of the Facility for any purpose which would breach any applicable Anti-Corruption Laws.

 

(b)                            The Borrower shall (and the Borrower shall ensure that each other member of the Group will):

 

(i)                   comply with, and ensure that each of his or its officers, directors, employees and agents will comply with, all applicable Anti-Corruption Laws; and

 

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(ii)                         maintain policies and procedures designed to promote and achieve compliance with all applicable Anti-Corruption Laws.

 

19.27 Sanctions

 

(a)                            The Borrower shall (and the Borrower shall ensure that no other member of the Group will) use any of the funds advanced under this Agreement directly or indirectly for business activities relating to (a) Cuba, Sudan, Iran, Myanmar (Burma), Syria, North Korea or Crimea; or (b) any other countries that are subject to economic and/or trade sanctions as notified in writing by the Lender to the Borrower from time to time.

 

(b)                            The Borrower undertakes not to (and the Borrower shall ensure that no other member of the Group will) use any of the funds advanced under this agreement directly or indirectly for business activities that are subject to sanctions, restrictions or embargoes imposed by the United Nations, the European Union, the State Secretariat for Economic Affairs of Switzerland or the Swiss Directorate of Public International Law, the United States Treasury Department’s Office of Foreign Assets Control, HM Treasury of the United Kingdom, the Hong Kong Monetary Authority, the Monetary Authority of Singapore and/or any other body notified in writing by the Lender to the Borrower from time to time. This includes, in particular (but without limitation) business activities involving persons or entities subject to any such sanctions or named on any sanctions lists issued by any of the aforementioned bodies and entities owned or controlled by such listed persons or entities.

 

20. COLLATERAL

20.1 Top-Up Obligations

 

(a)                     If, on any Valuation Day, the Lender determines that the Company Share Closing Price falls below US$[***] (a “First Top-Up Event”), provided that the Lender has not previously delivered to the Borrower any Top-Up Notice:

 

(i)                                     the Lender may deliver to the Borrower a Top-Up Notice;

 

(ii)                                  if the Borrower intends to transfer Eligible Securities (which, for the avoidance of doubt, shall not include Company Shares) as Securities Collateral in accordance with paragraph (iii)(B) below, the Borrower must notify the Lender of the classes or types of Eligible Securities that the Borrower intends to transfer, and request the Lender to provide it with the relevant Eligible Securities Lending Ratio and the Eligible Securities Price for each such class or type Eligible Securities; and

 

(iii)                               the Borrower must, by not later than the relevant Top-Up Deadline:

 

(A)                               pay to the Cash Collateral Account in cleared funds a sufficient amount of US dollars as Cash Collateral; and/or

 

(B)                               (if the Lender has provided the Borrower with the relevant Eligible Securities Lending Ratio and the Eligible Securities Price for any class or type of Eligible Securities) transfer to the Securities Collateral Account a sufficient number of Eligible Securities of such class or type (other than Company Shares) as Pledged Eligible Securities,

 

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to ensure that the LTV Ratio, after being recalculated by taking in account the additional payment and/or transfer, is equal to or lower than the Initial LTV Ratio.

 

For the avoidance of doubt, any failure or delay by the Lender to provide the Borrower with the relevant Eligible Securities Lending Ratio and the Eligible Securities Price for any class or type of Eligible Securities shall not affect or vary the Borrower’s obligation to comply with paragraph (iii) above by the relevant Top-Up Deadline.

 

(b)                   If, on any Valuation Day following the delivery of a Top-Up Notice as a result of a First Top-Up Event, the Lender determines that the Company Share Closing Price falls below US$[***] (a “Second Top-Up Event”), provided that the Lender has not previously delivered to the Borrower any Top-Up Notice in accordance with this paragraph (b):

 

(i)                                the Lender may deliver to the Borrower a Top-Up Notice; and

 

(ii)                             the Borrower must, by not later than the relevant Top-Up Deadline, pay to the Cash Collateral Account in cleared funds a sufficient amount of US dollars to ensure that the LTV Ratio, after being recalculated by taking in account the additional payment, is equal to or lower than the Initial LTV Ratio.

 

(c)                                  If, on any Valuation Day following the delivery of a Top-Up Notice as a result of a Second Top-Up Event, the Lender determines that the LTV Ratio exceeds [***] per cent. (a “Subsequent Top-Up Event”):

 

(i)                                the Lender may deliver to the Borrower a Top-Up Notice; and

 

(ii)                             the Borrower must, by not later than the relevant Top-Up Deadline, pay to the Cash Collateral Account in cleared funds a sufficient amount of US dollar to ensure that the LTV Ratio, after being recalculated by taking in account the additional payment, is equal to or lower than the Initial LTV Ratio.

 

(d)                 If any mandatory prepayment event specified in paragraph (c) to (f) or (h) to (j) in Clause 7.3 (Mandatory prepayment of Loan) occurs with respect to any issuer of Eligible Securities (other than the Company) or any Eligible Securities other than the Company Shares (in each case, the Eligible Securities related thereto being the “Affected Eligible Securities”), the Eligible Securities Lending Ratio in respect of the Affected Eligible Securities shall become zero and the Borrower must, within two Business Days immediately following the occurrence of the relevant event:

 

(i)                                pay to the Cash Collateral Account in cleared funds a sufficient amount of US dollars as Cash Collateral; and/or

 

(ii)                             (if the Lender has provided the Borrower with the relevant Eligible Securities Lending Ratio and the Eligible Securities Price for any class or type of Eligible Securities other than the Affected Eligible Securities) transfer to the Securities Collateral Account a sufficient number of Eligible Securities of such class or type (other than any Affected Eligible Securities or Company Shares) as Pledged Eligible Securities,

 

to ensure that the LTV Ratio, after being recalculated by taking into account the additional payment and/or transfer, is equal to or lower than the LTV Ratio immediately prior to the occurrence of such event.

 

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(e)                      If paragraph (d) above applies and the Borrower complies with its provisions, the Lender must, at the request and cost of the Borrower, take whatever action is reasonably necessary to release the Affected Eligible Securities from the Transaction Security. Notwithstanding any other terms of the Finance Documents, upon release of the Affected Eligible Securities from the Transaction Security pursuant to this clause 20.1(e), the Borrower shall be permitted to dispose of such Affected Eligible Securities and/or continue to own such Affected Eligible Securities.

 

20.2 Collateral Accounts

 

(a)                                 The Borrower must maintain the Cash Collateral Account and the Securities Collateral Account with the Lender.

 

(b)                                 Except as expressly allowed under the Finance Documents, the Borrower must not withdraw or transfer (and must not instruct the Lender to withdraw or transfer):

 

(i)                                     any Pledged Eligible Securities from the Securities Collateral Account; or

 

(ii)                                  any cash from the Cash Collateral Account.

 

20.3 Dividends

 

The Borrower must ensure that all Dividends paid or made in respect of any Securities Collateral:

 

(a)                                 in cash are paid into the Cash Collateral Account; and

 

(b)                                 in any other form are transferred into the Securities Collateral Account,

 

in each case on the applicable date on which any Dividends are paid or distributed to a holder of record with respect to such securities and shall be subject to the Transaction Security.

 

21.                               EVENTS OF DEFAULT

 

Each of the events or circumstances set out in the following sub-Clauses of this Clause 20 (other than Clause 21.17 (Acceleration) and 21.18 (Bulk Sale and Private Sale)) is an Event of Default.

 

21.1 Non-payment

 

An Obligor does not pay on the due date any amount payable pursuant to a Finance Document at the place at and in the currency in which it is expressed to be payable unless such nonpayment is caused by technical or administrative error and is remedied within two Business Days.

 

21.2 Security Support

 

The Borrower does not comply with Clause 19.19 (Conditions subsequent) or Clause 20.1 (Top-Up Obligations).

 

21.3 Other obligations

 

(a)                                 An Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 21.1 (Non-payment) and Clause 21.2 (Security Support)).

 

(b)                                 No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within ten Business Days of the earlier of (A) the

 

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Lender giving notice to the Borrower and (B) the Borrower becoming aware of the failure to comply.

 

21.4 Misrepresentation

 

Any representation or statement made or deemed to be made by an Obligor in the Finance Documents or any other document delivered by or on behalf of any Obligor under or in connection with any Finance Document is or proves to have been incorrect or misleading in any material respect when made or deemed to be made.

 

21.5 Cross default

 

(a)                                 Any Financial Indebtedness of any Obligor is not paid when due nor within any originally applicable grace period.

 

(b)                                 Any Financial Indebtedness of any Obligor is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).

 

(c)                                  Any commitment for any Financial Indebtedness of any Obligor is cancelled or suspended by a creditor of any Obligor as a result of an event of default (however described).

 

(d)                                 Any creditor of any Obligor becomes entitled to declare any Financial Indebtedness of any Obligor due and payable prior to its specified maturity as a result of an event of default (however described).

 

(e)                                  No Event of Default will occur under this Clause 21.5 (Cross default) in relation to the Guarantor if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness of the Guarantor falling within paragraphs (a) to (d) above is less than US$500,000 or its equivalent in any other currency or currencies.

 

21.6 Insolvency

 

(a)                                 An Obligor is or is presumed or deemed to be unable or admits inability to pay his or its debts as they fall due, suspends making payments on any of his or its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of his or its creditors with a view to rescheduling any of his or its indebtedness.

 

(b)                                 The value of the assets of any Obligor is less than its liabilities (taking into account contingent and prospective liabilities).

 

(c)                                  A moratorium is declared in respect of any indebtedness of any Obligor.

 

21.7 Insolvency proceedings

 

Any corporate action, legal proceedings or other procedure or step is taken in relation to:

 

(a)                                 the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration, provisional supervision or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any Obligor;

 

(b)                                 a composition or arrangement with any creditor of any Obligor, or an assignment for the benefit of creditors generally of any Obligor or a class of such creditors;

 

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(c)                                  the appointment of a trustee in bankruptcy, liquidator, receiver, administrator, administrative receiver, compulsory manager, provisional supervisor or other similar officer in respect of any Obligor or any of his or its assets; or

 

(d)                                 enforcement of any Security over any assets of any Obligor, or any analogous procedure or step is taken in any jurisdiction.

 

Paragraph (a) shall not apply to any bankruptcy or winding-up petition which is frivolous or vexatious and is discharged, stayed or dismissed within seven days of commencement.

 

21.8 Creditors’ process

 

Any expropriation, attachment, sequestration, distress or execution affects any asset or assets of an Obligor and is not discharged within five days.

 

21.9 Guarantor

 

The Guarantor dies or ceases to be of sound mind.

 

21.10 Unlawfulness

 

(a)                            It is or becomes unlawful for an Obligor to perform any of his or its obligations under the Finance Documents or any Transaction Security created or expressed to be created or evidenced by the Transaction Security Documents ceases to be effective.

 

(b)                            Any obligation or obligations of an Obligor under any Finance Documents are not (subject to the Legal Reservations) or cease to be legal, valid, binding or enforceable.

 

(c)                             A Finance Document does not create a Security it purports to create.

 

21.11 Expropriation

 

The authority or ability of any Obligor to conduct his or its business is limited or wholly or substantially curtailed by an seizure, expropriation, nationalisation, intervention, restriction or other action by or on behalf of any Governmental Agency or other person in relation to any Obligor or any of his or its assets.

 

21.12 Repudiation and rescission

 

An Obligor rescinds or purports to rescind or repudiates or purports to repudiate a Finance Document or any of the Transaction Security or evidences an intention to rescind or repudiate a Finance Document or any Transaction Security.

 

21.13 Litigation

 

(a)                            Any litigation, arbitration, administrative, governmental, regulatory or other investigations, proceedings or disputes are commenced or threatened, or any judgment or order of a court, arbitral tribunal or other tribunal or any order or sanction of any Governmental Agency is made, in relation to the Finance Documents or the transactions contemplated in the Finance Documents or against the Borrower or its assets.

 

(b)                            Any litigation, arbitration, administrative, governmental, regulatory or other investigations, proceedings or disputes are commenced or threatened, or any judgment or order of a court, arbitral tribunal or other tribunal or any order or sanction of any Governmental Agency is made against the Guarantor or its assets

 

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which could reasonably be expected to have an effect falling within paragraph (b) or (c) of the definition of “Material Adverse Effect”.

 

21.14 Cessation of business

 

The Borrower suspends or ceases to carry on (or threatens to suspend or cease to carry on) all or a material part of its business.

 

21.15 Debt Purchase Transaction

 

Any member of the Group enters into any Debt Purchase Transaction.

 

21.16 Material adverse change

 

Any event or circumstance occurs which has or is reasonably likely to have a Material Adverse Effect.

 

21.17 Acceleration

 

(a)                                 Subject to paragraph (b) below, on and at any time after the occurrence of an Event of Default which is continuing the Lender may, by notice to the Borrower:

 

(i)                                     cancel the Commitment (and reduce them to zero), whereupon it shall immediately be cancelled (and reduced to zero); and/or

 

(ii)                                  declare that all or part of the Loan, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon they shall become immediately due and payable; and/or

 

(iii)                               declare that all or part of the Loan be payable on demand, whereupon they shall immediately become payable on demand by the Lender and/or

 

(iv)                              enforce any Transaction Security and take any action stipulated in the Transaction Security Documents as arising upon an Event of Default.

 

(b)                       Immediately upon the occurrence of an Event of Default specified in Clause 21.7 (Insolvency proceedings) arising as a result of any corporate action, legal proceeding or other procedure or step taken under the US Bankruptcy Code:

 

(i)                                     the Commitment shall automatically be cancelled (and reduced to zero);

 

(ii)                                  the Loan, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents shall automatically become immediately due and payable; and

 

(iii)                               the Transaction Security shall immediately become enforceable, in each case, without further act of the Lender or any other person.

 

21.18 Bulk Sale and Private Sale

 

(a)                   The Borrower acknowledges and agrees that upon the occurrence of an Event of Default and the exercise of rights arising pursuant to the Transaction Security Documents:

 

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(i)                                     a bulk sale of the Pledged Company Shares may occur which may result in a substantially discounted realisation value with respect to the Pledged Company Shares compared to the then current market price; and

 

(ii)                                  a private sale of the Pledged Company Shares may occur which may result in less proceeds than a public sale.

 

(b)                                 The Borrower further acknowledges and agrees that:

 

(i)                                     any such bulk sale or private sale shall be a commercially reasonable disposition under the UCC notwithstanding any loss to it from a lower sale price; and

 

(ii)                                  the Lender shall not have any liability or responsibility for any such loss.

 

(c)                                  For the avoidance of doubt, the Parties hereby agree that if the Lender declares the Loan, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable in accordance with Clause 21.17 (Acceleration), all the Collateral shall be aggregated together for purposes of enforcement of the Transaction Security to satisfy any amounts owed by the Borrower under any Finance Document.

 

22.                               CHANGES TO THE PARTIES

 

22.1 Assignments and transfers by the Borrower

 

The Borrower may not assign or transfer any of its rights and obligations under the Finance Documents without the prior consent of the Lender.

 

22.2 Assignments and transfers by the Lender

 

(a)                            Subject to Clause 22.2(c) below, the Lender may with the consent of the Borrower (such consent not to be unreasonably withheld) at any time assign or transfer (including by way of novation) any of its rights and obligations under this Agreement or any other Finance Document to any of its Affiliates or to any other bank or financial institution or to a trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets. The Borrower will be deemed to have given its consent ten Business Days after a Lender has requested it unless consent is expressly refused by the Borrower within that time.

 

(b)                            A transfer of obligations will be effective only if the transferee (the “New Lender”) confirms to the Borrower in form and substance satisfactory to the Borrower that it is bound by the terms of this Agreement as the Lender. On the transfer becoming effective in this manner the Lender will be released from its obligations under this Agreement or any other Finance Document to the extent that they are transferred to the New Lender.

 

(c)                             The Borrower’s consent will not be required by Clause 22.2(a) above if the transfer or assignment is:

 

(i)                                     to another Lender or an Affiliate of a Lender; or

 

(ii)                                  made after the occurrence of an Event of Default.

 

22.3 Security over Lender’s rights

 

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In addition to the other rights provided to the Lender under this Clause 22, the Lender may without consulting with or obtaining consent from the Borrower, at any time charge, assign or otherwise create Security in or over (whether by way of collateral or otherwise) all or any of its rights under any Finance Document to secure obligations of the Lender including, without limitation, any charge, assignment or other Security to secure obligations to a federal reserve or central bank, except that no such charge, assignment or Security shall:

 

(a)                                 release the Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security for the Lender as a party to any of the Finance Documents; or

 

(b)                                 require any payments to be made by the Borrower other than or in excess of, or grant to any person any more extensive rights than, those required to be made or granted to the Lender under the Finance Documents.

 

22.4 Sub-participations

 

The Lender may, without the consent of any person, enter into a Participation Agreement with any person.

 

23.                               DISCLOSURE OF INFORMATION

23.1 Disclosure of information

 

(a)                   The Lender must keep confidential any information supplied to it by or on behalf of any Obligor in connection with the Finance Documents. However, the Lender is entitled to disclose information:

 

(i)                                     which is publicly available, other than as a result of a breach by the Lender of this Clause;

 

(ii)                                  if required to do so in connection with any legal, arbitration or regulatory proceedings or procedure;

 

(iii)                               if required to do so under any law or regulation (including any regulation applicable to banks in Hong Kong in relation to the prevention of money laundering and/or countering the financing of terrorism);

 

(iv)                              to a governmental, banking, taxation or other regulatory authority;

 

(v)                                 to its professional advisers and any other person providing services to it (including, without limitation, any provider of administrative, agency or settlement services, external auditors, stock exchanges, clearing houses and other financial market utilities) provided that such person is under a duty of confidentiality, contractual or otherwise, to the Lender;

 

(vi)                              to the head office, branches, representative offices, Subsidiaries, related corporations or Affiliate of the Lender (each a “Related Party”) and each Related Party shall be permitted to disclose information as if it were the Lender;

 

(vii)                           to any person permitted by any Obligor;

 

(viii)                        to any Obligor;

 

(ix)                              to the International Swaps and Derivatives Association, Inc. (“ISDA”) or any Credit Derivatives Determination Committee or sub-committee of ISDA

 

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where such disclosure is required by them in order to determine whether the obligations under the Finance Documents will be, or in order for the obligations under the Finance Documents to become, deliverable under a credit derivative transaction or other credit linked transaction which incorporates the 2014 ISDA Credit Derivatives Definitions or other provisions substantially equivalent thereto; or

 

(x)                                 to any person for the purpose of obtaining a valuation in connection with a Participation Agreement.

 

(b)                                 The Lender may disclose to:

 

(i)                                     its Affiliate;

 

(ii)                                  a transferee or assignee;

 

(iii)                               a Participant;

 

(iv)                              any potential transferee or assignee;

 

(v)                                 any potential Participant; or

 

(vi)                              any person who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any person referred to in paragraphs (b) (i) to (b) (v) above (an “investor”)

 

a copy of any Finance Document and any information which the Lender has acquired under or in connection with any Finance Document.

 

However, before a potential transferee, assignee, investor or Participant may receive any confidential information, it must execute in favour of the Lender a confidentiality agreement in a form customarily required by the Lender, but on the basis that that potential transferee, assignee, investor or Participant may itself disclose the documents and information referred to in paragraphs(b)(i) and (ii) to its Affiliate or any person with whom it may enter, or has entered into, any kind of transfer of an economic or other interest in, or related to, this Agreement so long as that potential transferee, assignee, investor or Participant executes in favour of that potential transferee, assignee, investor or Participant a confidentiality agreement in a form customarily required by that potential transferee, assignee, investor or Participant.

 

(c)                                  At any time after becoming entitled to enforce the Transaction Security and while that right continues, the Lender may:

 

(i)                   disclose to any person (in its absolute discretion and without reference or notification to any Obligor):

 

(A)                               the fact that the Lender may be entitled to enforce (or have enforced) their rights, powers, remedies and discretions under the Transaction Security Documents and the other Finance Documents and any surrounding circumstances;

 

(B)                               any information concerning the Facility, the Finance Documents and any transaction entered into in connection with the Finance Documents; and

 

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(C)                        any other relevant information concerning any arrangement, transaction or facility entered into between the Lender and any Obligor; and

 

(ii)                     use any of the information referred to in paragraph (i) above in connection with, or upon, the exercise of any remedies hereunder or under any other Finance Document or any action or proceeding relating to this Agreement or any other Finance Document or the enforcement of rights hereunder or thereunder.

 

23.2 Disclosure by Lender

 

Nothing in this Clause prohibits the Lender from disclosing, and the Lender is permitted to disclose, any information which an Obligor or any other member of the Group is required to notify, report or disclose in connection with dealings or interest in (as applicable) any Eligible Securities or any of the transactions contemplated under any Finance Document, including where notification, reporting or disclosure is required following the exercise of any right by the Lender under any Finance Document, and which an Obligor or such other member of the Group fails to notify, report or disclose.

 

23.3 Previous confidentiality undertaking

 

This Clause supersedes any previous confidentiality undertaking given by the Lender in connection with this Agreement prior to it becoming a Party.

 

24.                               PAYMENT MECHANICS

 

24.1 Payments to the Lender

 

(a)                                 On each date on which the Borrower is required to make a payment under a Finance Document, the Borrower shall make the same available to the Lender for value on the due date at the time and in such funds specified by the Lender as being customary at the time for settlement of transactions in the relevant currency in the place of payment.

 

(b)                                 Payment shall be made to such account in Hong Kong with such bank as the Lender may notify to the Borrower by not less than five Business Days’ notice.

 

24.2 Payments by the Lender

 

(a)                                 On each date on which the Lender is required to make a payment to the Borrower under a Finance Document, the Lender shall make the same available to the Borrower for value on the due date at the time and in such funds specified by the Lender as being customary at the time for settlement of transactions in the relevant currency in the place of payment.

 

(b)                                 Payment shall be made to such account in Hong Kong with such bank as the Borrower may notify to the Lender in the Utilisation Request.

 

24.3 Distributions to the Borrower

 

The Lender may (with the consent of the Borrower or in accordance with Clause 25 (Set-off)) apply any amount received by it for the Borrower in or towards payment (in the currency and funds of receipt) of any amount due from the Borrower under the Finance Documents or in or towards purchase of any amount of any currency to be so applied.

 

24.4 Partial payments

 

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(a)                                 If the Lender receives a payment that is insufficient to discharge all the amounts then due and payable by the Borrower under the Finance Documents, the Lender shall apply that payment towards the obligations of the Borrower under the Finance Documents in the following order:

 

(i)                                    first, in or towards payment pro rata of any unpaid fees, costs and expenses of the Lender under the Finance Documents;

 

(ii)                                secondly, in or towards payment pro rata of any accrued interest, fee (other than as provided in (i) above) or commission due but unpaid under this Agreement;

 

(iii)                            thirdly, in or towards payment pro rata of any principal due but unpaid under this Agreement; and

 

(iv)                             fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents.

 

(b)                                 The Lender may vary the order set out in paragraphs (a)(ii) to (iv) above.

 

(c)                                  Paragraphs (a) and (b) above will override any appropriation made by the Borrower.

 

24.5 No set-off by the Borrower

 

All payments to be made by the Borrower under the Finance Documents shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.

 

24.6 Business Days

 

(a)                                 Any payment which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).

 

(b)                                 During any extension of the due date for payment of any principal or Unpaid Sum under paragraph (a) above, interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.

 

24.7 Currency of account

 

(a)                                 Subject to paragraphs (b) and (c) below, US dollar is the currency of account and payment for any sum due from the Borrower under any Finance Document.

 

(b)                                 Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.

 

(c)                                  Any amount expressed to be payable in a currency other than US dollar shall be paid in that other currency.

 

25.                               SET-OFF

 

The Lender may set off any matured obligation due from the Borrower under the Finance Documents against any matured obligation owed by the Lender to the Borrower, regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Lender may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.

 

26.                               NOTICES

 

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26.1 Communications in writing

 

Any communication to be made under or in connection with the Finance Documents shall be made in writing and, unless otherwise stated, may be made by fax, letter or electronic mail.

 

26.2 Addresses

 

The address, electronic mail address and fax number (and the department or officer, if any, for whose attention the communication is to be made) of each Party for any communication or document to be made or delivered under or in connection with the Finance Documents is:

 

(a)           in the case of the Borrower:

 

Address: 20/F Beijing Ideal International Plaza, No. 58 North 4th Ring Road West,

Haidian District, Beijing, 100080, People’s Republic of China

Attention: Charles Cao / Bonnie Zhang

Email: Bonnie@staff.sina.com.cn

 

(b)           in the case of the Lender:

 

Address: Level 88 International Commerce Centre, 1 Austin Road West, Kowloon,

Hong Kong

Attention: Steven Lee

Fax: +852 2284 7561

Email: steven.w.lee@credit-suisse.com

 

or any substitute address, fax number or department or officer as the Party may notify to the other Parties by not less than five Business Days’ notice.

 

26.3 Delivery

 

(a)               Any communication or document made or delivered by the Lender to the Borrower under or in connection with the Finance Documents will only be effective:

 

(i)            if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address; or

 

(ii)           if by way of fax, when received in legible form,

 

and, if a particular department or officer is specified as part of its address details provided under Clause 26.2 (Addresses), if addressed to that department or officer.

 

(b)                           Any communication or document to be made or delivered to the Lender will be effective only when actually received by the Lender and then only if it is expressly marked for the attention of the department or officer identified with the Lender’s signature below or, in the case of communication by electronic mail or other electronic means, only if it is addressed in such a manner as the Lender shall specify for this purpose.

 

(c)                           Any communication or document which becomes effective, in accordance with paragraphs (a) to (b) above, after 5:00 p.m. in the place of receipt shall be deemed only to become effective on the following day.

 

26.4 Electronic communication

 

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(a)               Any communication to be made between the Parties under or in connection with the Finance Documents may be made by electronic mail or other electronic means to the extent the Parties agree that, unless and until notified to the contrary, this is to be an accepted form of communication and if those two Parties:

 

(i)            notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and

 

(ii)           notify each other of any change to their address or any other such information supplied by them by not less than five Business Days’ notice.

 

(b)               Any electronic communication made between the Parties will be effective only when actually received in readable form and in the case of any electronic communication to the Lender only if it is addressed in such a manner as the Lender shall specify for this purpose.

 

(c)                           Any electronic communication which becomes effective, in accordance with paragraph (b) above, after 5.00 p.m. in the place of receipt shall be deemed only to become effective on the following day.

 

26.5 English language

 

(a)           Any notice given under or in connection with any Finance Document must be in English.

 

(b)           All other documents provided under or in connection with any Finance Document must be:

 

(i)            in English; or

 

(ii)           if not in English, and if so required by the Lender, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.

 

27.          CALCULATIONS AND CERTIFICATES

27.1 Accounts

 

In any litigation or arbitration proceedings arising out of or in connection with a Finance Document, the entries made in the accounts maintained by the Lender are prima facie evidence of the matters to which they relate.

 

27.2 Certificates and determinations

 

Any certification or determination by the Lender of a rate or amount under any Finance Document is, in the absence of manifest error, conclusive evidence of the matters to which it relates.

 

27.3 Day count convention

 

Any interest, commission or fee accruing under a Finance Document will accrue from day to day and is calculated on the basis of the actual number of days elapsed and a year of 360 days or, in any case where the practice in determining LIBOR differs, in accordance with that practice.

 

28.          PARTIAL INVALIDITY

 

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If, at any time, any provision of the Finance Documents is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.

 

29.          REMEDIES AND WAIVERS

 

No failure to exercise, nor any delay in exercising, on the part of the Lender, any right or remedy under the Finance Documents shall operate as a waiver of any such right or remedy or constitute an election to affirm any of the Finance Documents. No election to affirm any of the Finance Documents on the part of the Lender shall be effective unless it is in writing. No single or partial exercise of any right or remedy shall prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.

 

30. REHYPOTHECATION

 

Prior to the occurrence of an Event of Default, the Lender agrees not to rehypothecate, pledge, sell, assign, invest, lend, use, commingle or otherwise dispose of, or otherwise use in its business, the Securities Collateral during the term of this Agreement, provided that the foregoing shall not restrict:

 

(a)           where or by whom the Securities Collateral may be held for purposes of perfecting the Transaction Security; or

 

(b)           the Lender’s right to assign or transfer any of its rights and obligations under any Finance Document under Clause 22.2 (Assignments and transfers by the Lender) or create Security in or over any of its rights under any Finance Document under 22.3 (Security over Lender’s rights).

 

31.          AMENDMENTS AND WAIVERS

31.1 Required consents

 

Subject to Clause 31.2 (Potential Adjustment Events) any term of the Finance Documents may be amended or waived only with the written consent of the Lender and the Borrower and any such amendment or waiver will be binding on all Parties.

 

31.2 Potential Adjustment Events

 

Upon the announcement of any Potential Adjustment Event, the Lender may (after consultation with the Borrower for at least two Business Days), by written notice to the Borrower:

 

(a)           propose corresponding adjustments to one or more of the material terms of this Agreement or any other Finance Document as the Lender reasonably determines necessary to preserve for the Lender the fair value of such material terms (which may include, without limitation, requiring the Borrower to create or grant additional Security on the Collateral or any other property of the Borrower); and

 

(b)           determine the effective date(s) of the adjustment(s) (which (i) in the case of a Merger Event (other than an event referred to in paragraph (c) of the definition of Merger Event) will be the date on which the relevant event is consummated, and (ii) in the case of an event referred to in paragraph (c) of the definition of Merger Event or a Tender Offer, will be the date the purchase, acquisition or obtaining of exposure takes place),

 

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provided that, if the Lender determines that no adjustment that it could make will produce a commercially reasonable result, following consultation with the Borrower for a period of no less than five Business Days or such shorter period as the Lender (acting reasonably) determines is appropriate in the circumstances (the “Period”), or the Borrower does not agree to any adjustments proposed by the Lender pursuant to (a) above within the Period, such Potential Adjustment Event shall be deemed to give rise to a Material Adverse Effect pursuant to Clause 21.16 (Material adverse change) (provided that such Material Adverse Effect shall be deemed to arise (i) in the case of a Merger Event (other than an event referred to in paragraph (c) of the definition of Merger Event) on the date on which the relevant event is consummated, and (ii) in the case of an event referred to in paragraph (c) of the definition of Merger Event or a Tender Offer, on the date the purchase, acquisition or obtaining of exposure takes place). Any such adjustments shall be binding on all Parties and all Parties shall enter into such documentation required to reflect such adjustments. The Potential Adjustment Event shall be deemed to occur on the earlier of the ex-date and the announcement date in respect of the relevant event, or such other date as the Lender reasonably determines.

 

32.          COUNTERPARTS

 

Each Finance Document may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of the Finance Document.

 

33.          GOVERNING LAW

 

This Agreement is governed by Hong Kong law.

 

34.          ENFORCEMENT

 

34.1 Jurisdiction of Hong Kong courts

 

(a)           The courts of Hong Kong have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including any dispute regarding the existence, validity or termination of this Agreement) (a “Dispute”).

 

(b)           The Borrower agrees that the courts of Hong Kong are the most appropriate and convenient courts to settle Disputes and accordingly the Borrower will not argue to the contrary.

 

(c)           This Clause 34.1 is for the benefit of the Lender only. As a result, the Lender shall not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Lender may take concurrent proceedings in any number of jurisdictions.

 

34.2 Service of process

 

(a)                   Without prejudice to any other mode of service allowed under any relevant law, the Borrower:

 

(i)            irrevocably appoints The Law Debenture Corporation (H.K.) Limited as its agent for service of process in relation to any proceedings before the Hong Kong courts in connection with any Finance Document; and

 

(ii)           agrees that failure by a process agent to notify the Borrower of the process will not invalidate the proceedings concerned.

 

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(b)         If any person appointed as an agent for service of process is unable for any reason to act as agent for service of process, the Borrower must immediately (and in any event within 5 days of such event taking place) appoint another agent on terms acceptable to the Lender. Failing this, the Lender may appoint another agent for this purpose.

 

35.          WAIVER OF IMMUNITIES

 

The Borrower irrevocably waives, to the extent permitted by applicable law, with respect to itself and its revenues and assets (irrespective of their use or intended use), all immunity on the grounds of sovereignty or other similar grounds from:

 

(a)         suit;

 

(b)         jurisdiction of any court or arbitral tribunal;

 

(c)          relief by way of injunction or order for specific performance or recovery of property;

 

(d)         attachment of its assets (whether before or after judgment); and

 

(e)          execution or enforcement of any judgment to which it or its revenues or assets might otherwise be entitled in any proceedings in the courts or arbitral tribunals of any jurisdiction (and irrevocably agrees, to the extent permitted by applicable law, that it will not claim any immunity in any such proceedings).

 

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SCHEDULE 1

CONDITIONS PRECEDENT

 

1.             OBLIGORS

 

(a)           A copy of the constitutional documents of the Borrower.

 

(b)           A copy of the constitutional documents of the Company.

 

(c)           A copy of a resolution of the board of directors of the Borrower:

 

(i)            approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party;

 

(ii)           authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and

 

(iii)          authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party.

 

(d)           A copy of a resolution of the board of directors of the Company:

 

(i)            approving the terms of the Issuer Instruction Letter and the Issuer Acknowledgement Letter and resolving that it execute the Issuer Instruction Letter and the Issuer Acknowledgement Letter; and

 

(ii)           authorising a specified person or persons to execute the Issuer Instruction Letter and the Issuer Acknowledgement Letter.

 

(e)           A specimen of the signature of each person authorised by the resolution referred to in paragraphs (c) and (d) above.

 

(f)            A certificate from the Borrower (signed by a director) confirming that borrowing the Commitment would not cause any borrowing, securing or similar limit binding on it to be exceeded.

 

(g)           A certificate of an authorised signatory of the Borrower certifying that each copy document relating to it specified in paragraph 1 of this Schedule 1 is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.

 

(h)           A certificate of incumbency issued by the registered agent of the Borrower in the British Virgin Islands.

 

(i)            A certificate of good standing issued by the registered agent of the Company in the Cayman Islands.

 

(j)            A certified copy of the register of directors of the Company.

 

(k)           A certified copy of the Guarantor’s passport.

 

2.             LEGAL OPINIONS

 

(a)           A legal opinion as to Hong Kong law from Latham & Watkins addressed to the Lender, substantially in the form distributed to the Lender prior to the signing of this Agreement.

 

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(b)           A legal opinion as to British Virgin Islands law from Walkers addressed to the Lender, substantially in the form distributed to the Lender prior to signing this Agreement.

 

(c)           A legal opinion as to Cayman Islands law from Walkers addressed to the Lender, substantially in the form distributed to the Lender prior to signing this Agreement.

 

3.             SUBSCRIPTION AGREEMENT

 

(a)           A copy of a resolution of the board of directors of the Company approving the terms of, and the transactions contemplated by, the Subscription Agreement.

 

(b)           A copy of a resolution of the board of directors of the Borrower approving the terms of, and the transactions contemplated by, the Subscription Agreement.

 

4.             OTHER DOCUMENTS AND EVIDENCE

 

(a)           The following Finance Documents, each duly executed by the parties to it:

 

(i)            this Agreement;

 

(ii)           the Guarantee;

 

(iii)          the Issuer Instruction Letter;

 

(iv)          the Issuer Acknowledgement Letter; and

 

(v)           each Transaction Security Document.

 

(b)           Any additional notices, forms or other documents required to be given under the Transaction Security Documents including, but not limited to:

 

(i)            five executed but undated transfer of ownership forms in the form set out in Schedule 1 of the Cayman Security Agreement; and

 

(ii)           an executed irrevocable proxy and power of attorney in the form set out in Schedule 2 of the Cayman Security Agreement.

 

(c)           Evidence that any process agent referred to in Clause 34.2 (Service of process) has accepted its appointment.

 

(d)           Evidence that any process agent referred to in section 24.2 of the Hong Kong Security Deed has accepted its appointment.

 

(e)           Evidence that all fees and expenses then due from the Obligors to the Lender (including, without limitation, legal fees due from the Borrower pursuant to Clause 16.1(b)) have been paid or will be paid by the first Utilisation Date.

 

(f)            A copy of any other Authorisation or other document, opinion or assurance which the Lender considers to be necessary or desirable (if it has notified the Borrower accordingly) in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document.

 

(g)           Any information or evidence requested by the Lender in order to comply with applicable law and pursuant to “know your client” procedures.

 

65



 

(h)           Reliance letter signed by counsel for the Company substantially in the form appended as Annex F to the Issuer Instruction Letter.

 

66



 

SCHEDULE 2

UTILISATION REQUEST

 

From: New Wave MMXV Limited

 

To:          Credit Suisse AG Hong Kong branch

 

Dated:

 

Dear Sirs

 

Facility Agreement dated [        ] (the “Facility Agreement”)

 

1.              We refer to the Facility Agreement. This is a Utilisation Request. Terms defined in the Facility Agreement shall have the same meaning in this Utilisation Request.

 

2.              We wish to borrow the Loan on the following terms:

 

3.              Proposed Utilisation Date:                                 [     ] (or, if that is not a Business Day, the next Business Day)

 

4.              Amount:                                                                [     ] or, if less, the Commitment

 

5.              We confirm that each condition specified in Clause 4.2 (Further conditions precedent) is satisfied on the date of this Utilisation Request.

 

6.              The proceeds of the Loan should be credited to [account].1

 

7.              This Utilisation Request is irrevocable.

 

 

 

Yours faithfully

 

 

 

 

 

authorised signatory for

 

 

New Wave MMXV Limited

 

 


1 To insert details of the Company’s account to which the subscription price is to be paid

 

67



 

SCHEDULE 3
TOP-UP NOTICE

 

From: Credit Suisse AG Hong Kong Branch

 

To:          New Wave MMXV Limited

 

Dated:

 

Dear Sirs

 

Facility Agreement dated [        ] (the “Facility Agreement”)

 

1.             We refer to the Facility Agreement. This is a Top-Up Notice. Terms defined in the Facility Agreement shall have the same meaning in this Top-Up Notice.

 

2.             We wish to inform you that as on a Valuation Day falling on [ ], we have determined that the Company Share Closing Share Price on such Valuation Day is [  ]. On such Valuation Day the LTV Ratio is [         ] and that accordingly, [a First Top Up Event]/ [ a Second Top Up Event]/ [a Subsequent Top Up Event] has occurred.

 

3.             Please pay to the Cash Collateral Account in cleared funds a sufficient amount of US dollars as Cash Collateral [and/or transfer to the Securities Collateral Account a sufficient number of Eligible Securities (other than Company Shares) as Pledged Eligible Securities] in accordance with the terms specified in Clause 20.1 (Top-Up Obligations) of the Facility Agreement as soon as possible and in any event by the relevant Top-Up Deadline.

 

 

 

Yours faithfully

 

 

 

 

 

 

 

 

authorised signatory for

 

 

Credit Suisse AG Hong Kong Branch

 

 

68



 

SIGNATORIES

 

THE BORROWER

 

EXECUTED BY

NEW WAVE MMXV LIMITED

 

By:

/s/ Charles Chao

 

Name: Charles Chao

 

Title: Director

 

 



 

THE LENDER

 

EXECUTED BY

CREDIT SUISSE AG HONG KONG BRANCH

 

By:

/s/ Davide Catalano

 

Name: Davide Catalano

 

Title: Director

 

 

 

By:

/s/ Leo Chan

 

Name: Leo Chan

 

Title: Vice President

 

 




Exhibit D

 

EXECUTION COPY

 

DATED  NOVEMBER 4, 2015

 

(1) NEW WAVE MMXV LIMITED

 

(2) CREDIT SUISSE AG HONG KONG BRANCH

 


 

EQUITABLE SHARE MORTGAGE IN RESPECT OF SHARES OF SINA CORPORATION

 


 

THE TAKING OR SENDING BY ANY PERSON OF AN ORIGINAL OF THIS DOCUMENT
INTO THE CAYMAN ISLANDS MAY GIVE RISE TO THE IMPOSITION OF CAYMAN
ISLANDS STAMP DUTY

 

 

III WALKERS

 

Walkers (Singapore) Limited Liability Partnership
UEN/Reg.No. T09LL0833E, 3 Church Street
#16-02, Samsung Hub, Singapore 048583
T +65 6595 4670 F +65 6595 4671 www.walkersglobal.com

REF: JSR/RS/JP/C4280-S04726

 



 

TABLE OF CONTENTS

 

CLAUSE

 

PAGE

 

 

 

 

1.

DEFINITIONS AND INTERPRETATION

 

1

 

 

 

 

2.

REPRESENTATION AND WARRANTIES

 

2

 

 

 

 

3.

SECURITY

 

3

 

 

 

 

4.

RIGHTS IN RESPECT OF MORTGAGED PROPERTY

 

4

 

 

 

 

5.

PRESERVATION OF SECURITY

 

4

 

 

 

 

6.

ENFORCEMENT OF SECURITY

 

7

 

 

 

 

7.

APPOINTMENT OF A RECEIVER

 

9

 

 

 

 

8.

POWERS OF A RECEIVER

 

9

 

 

 

 

9.

FURTHER ASSURANCES

 

10

 

 

 

 

10.

INDEMNITIES

 

10

 

 

 

 

11.

POWER OF ATTORNEY

 

11

 

 

 

 

12.

RELEASE

 

12

 

 

 

 

13.

NOTICES

 

12

 

 

 

 

14.

ASSIGNMENTS

 

13

 

 

 

 

15.

SET-OFF

 

13

 

 

 

 

16.

SUBSEQUENT SECURITY

 

13

 

 

 

 

17.

COSTS AND EXPENSES

 

13

 

 

 

 

18.

MISCELLANEOUS

 

13

 

 

 

 

19.

LAW AND JURISDICTION

 

14

 

 

 

 

SCHEDULE 1

 

2

 

 

 

SCHEDULE 2

 

3

 



 

THIS EQUITABLE SHARE MORTGAGE is made on                                    2015

 

BETWEEN

 

(1)                                 NEW WAVE MMXV LIMITED, a BVI business company incorporated under the laws of the British Virgin Islands with company number 1884011 and having its registered office at Kingston Chambers, P.O. Box 173, Road Town, Tortola, British Virgin Islands (the “Mortgagor”); and

 

(2)                                 CREDIT SUISSE AG HONG KONG BRANCH as mortgagee (the Mortgagee”).

 

IT IS AGREED

 

1.                                      DEFINITIONS AND INTERPRETATION

 

1.1                               In this Mortgage, unless the context otherwise requires, words and expressions which are capitalised but not defined herein shall have the same meanings as are given to them in the Facility Agreement. In addition, the following definitions shall apply:

 

“BVI Act” means the BVI Business Companies Act, 2004 (as amended) of the British Virgin Islands.

 

“Companies Law” means the Companies Law (as amended) of the Cayman Islands.

 

“Company” means SINA Corporation, an exempted company incorporated in the Cayman Islands with company number 74902 and its registered office at PO Box 309, Ugland House, South Church Street, George Town, Grand Cayman KY1-1104, Cayman Islands.

 

“Enforcement Event” means the Mortgagee as lender having given a notice under clause 21.17(a) (Acceleration) of the Facility Agreement or the enforcement of this Security pursuant to clause 21.17(b) (Acceleration) of the Facility Agreement.

 

“Event of Default” has the same meaning as in the Facility Agreement.

 

“Facility Agreement” means the facility agreement relating to a US$230,000,000 term loan facility dated on or about the date hereof between the Mortgagor as borrower and the Mortgagee as lender.

 

“Insolvency Act” means the Insolvency Act, 2003 (as amended) of the British Virgin Islands. “Mortgage” means this share mortgage.

 

“Mortgaged Property” means the Mortgaged Shares and all rights, benefits and advantages now or at any time in the future deriving from or incidental to any of the Mortgaged Shares including:

 

(a)                                 all dividends or other distributions (whether in cash, securities or other property), interest and other income paid or payable in relation to any Mortgaged Shares;

 

(b)                                 all shares, securities, rights, monies or other property whether certificated or uncertificated accruing, offered or issued at any time by way of redemption, conversion, exchange, substitution, preference, option, bonus issue or otherwise in respect of or derived from any Mortgaged Shares (including but not limited to proceeds of sale); and

 

(c)                                  all certificates or other evidence of title to any of the Mortgaged Shares now and from time to time hereafter deposited with the Mortgagee.

 

1



 

“Mortgaged Shares” means:

 

(a)                                 11,000,000 ordinary shares of a par value of US$0.133 held (or to be acquired after the date of this Mortgage, as the case may be) by the Mortgagor in the Company; and

 

(b)                                 any shares acquired in respect of Mortgaged Shares by reason of a stock split, stock dividend, reclassification, distribution or otherwise.

 

“Parties” means the parties to this Mortgage.

 

“Register of Charges” means the register of charges of the Mortgagor maintained in accordance with section 162 of the BVI Act.

 

“Register of Members” means the register of members of the Company (including any applicable branch register and non-listed shares register) maintained by the Company in accordance with the Companies Law.

 

“Registrar of Corporate Affairs” means the Registrar of Corporate Affairs of the British Virgin Islands appointed under section 229 of the BVI Act.

 

“Secured Obligations” has the same meaning as in the Facility Agreement.

 

“Security” has the same meaning as in the Facility Agreement.

 

“Transfer of Ownership Form” means a transfer of ownership with W-9 form in the form set out in Schedule 1.

 

1.2                               The provisions of clause 1.2 (Construction) of the Facility Agreement shall apply to this Mortgage as though they were set out in full in this Mortgage, except that references to ‘this Agreement’ will be construed as references to this Mortgage.

 

2.                                      REPRESENTATION AND WARRANTIES

 

2.1                               The Mortgagor hereby represents and warrants to the Mortgagee on the date of this Mortgage that:

 

(a)                                 it is the sole legal and beneficial owner of the Mortgaged Property free from any Security (other than that created by this Mortgage) or other interest and any options or rights of pre-emption;

 

(b)                                 any Mortgaged Shares are, or will be when mortgaged and charged, duly authorised, validly issued, fully paid, non-assessable, freely transferable and constitute shares in the capital of a Cayman Islands exempted company. To the extent they are in existence there are no moneys or liabilities outstanding or payable in respect of any such shares nor will there be any and they have not been redeemed nor cancelled in any way nor will they be;

 

(c)                                  no person has or is entitled to any conditional or unconditional option, warrant or other right to subscribe for, purchase or otherwise acquire any Mortgaged Share;

 

(d)                                 other than the Existing Transfer Restrictions, the Mortgaged Shares are freely transferable on the books of the Company and no consents or approvals are required in order to register a transfer of the Mortgaged Shares;

 

(e)                                  the Mortgaged Shares are not issued with any preferred, deferred or other special rights or restrictions whether in regard to dividends, voting, return of any amount paid on account of shares or otherwise which are not expressly set out in the memorandum and articles of association of the Company;

 

2



 

(f)                                   it has not received any notice of an adverse claim by any person in respect of the ownership of the Mortgaged Property or any interest in the Mortgaged Property; and

 

(g)                                  it has not taken any action whereby the rights attaching to the Mortgaged Property are altered or diluted save to the extent such alteration or dilution is expressly permitted under this Mortgage.

 

2.2                               The Mortgagor also represents and warrants to and undertakes with the Mortgagee that the foregoing representations and warranties will be true and accurate throughout the continuance of this Mortgage with reference to the facts and circumstances subsisting from time to time.

 

3.                                      SECURITY

 

3.1                               As a continuing security for the discharge and/or payment of the Secured Obligations, the Mortgagor as legal and beneficial owner hereby:

 

(a)                                 mortgages in favour of the Mortgagee by way of a first equitable mortgage the Mortgaged Shares; and

 

(b)                                 charges in favour of the Mortgagee, by way of a first fixed charge, all of its right, title and interest in and to the Mortgaged Property including all benefits, present and future, actual and contingent accruing in respect of the Mortgaged Property.

 

3.2                               The Mortgagor hereby agrees to deliver, or cause to be delivered, to the Mortgagee on the date hereof and in a form and substance satisfactory to the Mortgagee:

 

(a)                                 five executed but undated Transfer of Ownership Forms; and

 

(b)                                 an executed irrevocable proxy and power of attorney in the form set out in Schedule 2.

 

3.3                               The Mortgagor shall deliver, or cause to be delivered, to the Mortgagee:

 

(a)                                 promptly, but in any event within 30 days after the date hereof (or such longer period as is agreed by the Mortgagee), provide the Mortgagee with five executed, medallion signature guaranteed but undated Transfer of Ownership Forms; and

 

(b)                                 at any time and from time to time thereafter, promptly following a written request from the Mortgagee, such number of executed, medallion signature guaranteed but undated Transfer of Ownership Forms as the Mortgagee shall specify in such request.

 

3.4                               Without prejudice to Clause 5.10(b), immediately upon the issue of any share certificate in relation to any Mortgaged Share or Mortgaged Shares, the Mortgagor shall deliver, or cause to be delivered, to the Mortgagee the original of any such share certificate.

 

3.5                               The Mortgagor shall, within 5 Business Days after execution of this Mortgage:

 

(a)                                 create and maintain a Register of Charges (to the extent this has not already been done) in accordance with section 162 of the BVI Act;

 

(b)                                 enter particulars as required by the BVI Act of the security interests created pursuant to this Mortgage in the Register of Charges and immediately after entry of such particulars has been made, provide the Mortgagee with a certified true copy of the updated Register of Charges; and

 

(c)                                  effect registration, or assist the Mortgagee in effecting registration, of this Mortgage with the Registrar of Corporate Affairs pursuant to section 163 of the BVI Act by

 

3



 

making the required filing, or assisting the Mortgagee in making the required filing, in the approved form with the Registrar of Corporate Affairs and (if applicable) provide confirmation in writing to the Mortgagee that such filing has been made.

 

3.6                               The Mortgagor shall:

 

(a)                                 procure that the following notation be entered on the Register of Members immediately upon the time of issuance of the Mortgaged Shares:

 

“11,000,000 shares issued as fully paid up and registered in the name of NEW WAVE MMXV LIMITED are mortgaged and charged in favour of CREDIT SUISSE AG HONG KONG BRANCH pursuant to a share mortgage dated [Date], as amended from time to time.”; and

 

(b)                                 by 10.00 am Eastern Standard Time on the date after the date of the issuance of the Mortgaged Shares, provide the Mortgagee with an email containing a PDF copy of a book entry statement relating to the Mortgaged Shares from the Register of Members provided by the Company’s transfer agent with the annotation referred to in paragraph (a) above (with the original to follow in the mail promptly thereafter).

 

4.                                      RIGHTS IN RESPECT OF MORTGAGED PROPERTY

 

4.1                               Unless and until the occurrence of an Enforcement Event:

 

(a)                                 the Mortgagor shall be entitled to exercise all voting and consensual powers pertaining to the Mortgaged Property or any part thereof for all purposes not inconsistent with the terms of this Mortgage or the other Finance Documents; and

 

(b)                                 the Mortgagor shall be entitled to receive and retain any dividends, interest or other moneys or assets accruing on or in respect of the Mortgaged Property or any part thereof.

 

4.2                               The Mortgagor shall pay all calls, instalments or other payments and shall discharge all other obligations, which may become due in respect of any of the Mortgaged Property. The Mortgagee may at any time if it thinks fit make such payments or discharge such obligations on behalf of the Mortgagor. Any sums so paid by the Mortgagee in respect thereof shall be repayable on demand and pending such repayment shall constitute part of the Secured Obligations.

 

4.3                               The Mortgagee shall not have any duty to ensure that any dividends, interest or other moneys and assets receivable in respect of the Mortgaged Property are duly and punctually paid, received or collected as and when the same become due and payable or to ensure that the correct amounts (if any) are paid or received on or in respect of the Mortgaged Property or to ensure the taking up of any (or any offer of any) stocks, shares, rights, moneys or other property paid, distributed, accruing or offered at any time by way of redemption, bonus, rights, preference, or otherwise on or in respect of, any of the Mortgaged Property.

 

4.4                               The Mortgagor hereby authorises the Mortgagee to arrange at any time and from time to time prior to or after the occurrence of an Event of Default for the Mortgaged Property or any part thereof to be registered in the name of the Mortgagee (or its nominee) thereupon to be held, as so registered, subject to the terms of this Mortgage and at the request of the Mortgagee, the Mortgagor shall without delay procure that the foregoing shall be done.

 

5.                                      PRESERVATION OF SECURITY

 

5.1                               It is hereby agreed and declared that:

 

(a)                                 the security created by this Mortgage shall be held by the Mortgagee as a continuing security for the payment and discharge of the Secured Obligations and the security

 

4



 

so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;

 

(b)                                 the Mortgagee shall not be bound to enforce any other security before enforcing the security created by this Mortgage;

 

(c)                                  no delay or omission on the part of the Mortgagee in exercising any right, power or remedy under this Mortgage shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Mortgagee may deem expedient; and

 

(d)                                 any waiver by the Mortgagee of any terms of this Mortgage shall only be effective if given in writing and then only for the purpose and upon the terms for which it is given.

 

5.2                               Any settlement or discharge under this Mortgage between the Mortgagee and the Mortgagor shall be conditional upon no security or payment to the Mortgagee by the Company or the Mortgagor or any other person being avoided or set aside or ordered to be refunded or reduced by virtue of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the time being in force and, if such condition is not satisfied, the Mortgagee shall be entitled to recover from the Mortgagor on demand the value of such security or the amount of any such payment as if such settlement or discharge had not occurred the payment of which amounts shall, for the avoidance of doubt, form part of the Secured Obligations.

 

5.3                               The rights of the Mortgagee under this Mortgage and the security hereby constituted shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part, including, and whether or not known to or discoverable by the Company, the Mortgagor, the Mortgagee or any other person:

 

(a)                                 any time or waiver granted to or composition with the Company, the Mortgagor or any other person;

 

(b)                                 the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any rights, remedies or securities against the Company, the Mortgagor or any other person;

 

(c)                                  any legal limitation, disability, incapacity or other circumstances relating to the Company, the Mortgagor or any other person;

 

(d)                                 any amendment or supplement to any Finance Document or other document or security (including any amendment the effect of which is to change the nature or amount of any facilities made available thereunder or to change the nature or extent of any obligations thereunder);

 

(e)                                  the dissolution, liquidation, amalgamation, reconstruction or reorganisation of the Company, the Mortgagor or any other person; or

 

(f)                                   the unenforceability, invalidity or frustration of any obligations of the Company, the Mortgagor or any other person under any Finance Document or any other document or security.

 

5.4                               Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Mortgagee, the Mortgagor shall not by virtue of any payment made hereunder on account of the Secured Obligations or by virtue of any enforcement by the Mortgagee of its rights under, or the security constituted by, this Mortgage or any Finance Document or by virtue of any relationship between or transaction involving the

 

5



 

Mortgagor and/or the Company (whether such relationship or transaction shall constitute the Mortgagor a creditor of the Company, a guarantor of the obligations of the Company or in part subrogated to the rights of others against the Company or otherwise howsoever and whether or not such relationship or transaction shall be related to, or in connection with, the subject matter of this Mortgage):

 

(a)                                 exercise any rights of subrogation against the Company or any other person in relation to any rights, security or moneys held or received or receivable by the Mortgagee or any person;

 

(b)                                 exercise any right of contribution from any co-surety liable in respect of such moneys and liabilities under any other guarantee, security or agreement;

 

(c)                                  exercise any right of set-off or counterclaim against the Company or any such co-surety;

 

(d)                                 receive, claim or have the benefit of any payment, distribution, security or indemnity from the Company or any such co-surety; or

 

(e)                                  unless so directed by the Mortgagee (when the Mortgagor will prove in accordance with such directions), claim as a creditor of the Company or any such co-surety in competition with the Mortgagee.

 

The Mortgagor shall hold in trust for the Mortgagee and forthwith pay or transfer (as appropriate) to the Mortgagee any such payment (including an amount to any such set-off), distribution or benefit of such security, indemnity or claim in fact received by it.

 

5.5                               Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Mortgagee, the Mortgagee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Mortgagee for as long as it may think fit, any moneys received, recovered or realised under this Mortgage or under any other guarantee, security or agreement relating in whole or in part to the Secured Obligations without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of the Secured Obligations; provided that the Mortgagee shall be obliged to apply amounts standing to the credit of such account or accounts once the aggregate amount held by the Mortgagee in any such account or accounts opened pursuant hereto is sufficient to satisfy the outstanding amount of the Secured Obligations in full.

 

5.6                               The Mortgagor shall not, without the prior written consent of the Mortgagee:

 

(a)                                 cause or permit any rights attaching to the Mortgaged Property to be varied or abrogated;

 

(b)                                 cause or permit any of the Mortgaged Property to be consolidated, sub-divided or converted or the capital of the Company to be re-organised, exchanged or repaid; or

 

(c)                                  cause or permit anything to be done which may depreciate, jeopardise or otherwise prejudice the enforceability of the security hereby given.

 

5.7                               The Mortgagor hereby covenants that it will remain the legal and beneficial owner of the Mortgaged Property (subject to the Security hereby created) and that it will not:

 

(a)                                 create or suffer the creation of any Security (other than those created by this Mortgage) or any other interest on or in respect of the whole or any part of the Mortgaged Property or any of its interest therein; or

 

(b)                                 sell, assign, transfer or otherwise dispose of any of its interest in the Mortgaged Property without the prior consent in writing of the Mortgagee.

 

6



 

5.8                               The Mortgagor shall remain liable to perform all the obligations assumed by it in relation to the Mortgaged Property and the Mortgagee shall be under no obligation of any kind whatsoever in respect thereof or be under any liability whatsoever in the event of any failure by the Mortgagor to perform its obligations in respect thereof.

 

5.9                               The Mortgagor shall ensure that it shall not, without the prior written consent of the Mortgagee, use its voting rights to permit the Company to amend its memorandum or articles of association in a way which could be expected to adversely affect the interests of the Mortgagee.

 

5.10                        The Mortgagor shall procure that the Company shall not, without the prior written consent of the Mortgagee:

 

(a)                                 register any transfer of the Mortgaged Shares to any person (except to the Mortgagee or its nominees pursuant to the provisions of this Mortgage);

 

(b)                                 issue any share certificate or replacement share certificates in respect of any of the Mortgaged Shares;

 

(c)                                  continue its existence under the laws of any jurisdiction other than the Cayman Islands;

 

(d)                                 do anything which might prejudice its status as an exempted company;

 

(e)                                  issue, allot or grant warrants or options with respect to any Mortgaged Share;

 

(f)                                   exercise any rights of forfeiture over any of the Mortgaged Shares; or

 

(g)                                  purchase, redeem, otherwise acquire, cancel, sub-divide, amalgamate, reclassify or otherwise restructure any of the Mortgaged Property.

 

5.11                        The Mortgagor shall procure that the Company shall:

 

(a)                                 irrevocably consent to any transfer of the Mortgaged Shares by the Mortgagee or its nominee to any other person pursuant to the exercise of the Mortgagee’s rights under this Mortgage; and

 

(b)                                 ensure that, upon issuance, the Mortgaged Shares remain recorded on the Register of Members maintained by American Stock Transfer & Trust Company, LLC in book-entry form, unless the prior written consent of the Mortgagee is received and any replacement transfer agent and registrar has acknowledged to the Mortgagee that it has assumed the obligations set forth in the Issuer Instruction Letter (as defined in the Facility Agreement) in a form reasonably satisfactory to the Mortgagee.

 

5.12                        The Mortgagor shall not, without the prior written consent of the Mortgagee, participate in any vote concerning a members’ liquidation or compromise in respect of the Company pursuant to section 116 of the Companies Law.

 

6.                                      ENFORCEMENT OF SECURITY

 

6.1                               At any time after the occurrence of an Enforcement Event, the security hereby constituted shall become immediately enforceable and the rights of enforcement of the Mortgagee under this Mortgage shall be immediately exercisable upon and at any time thereafter and, without prejudice to the generality of the foregoing the Mortgagee without further notice to the Mortgagor may, whether acting on its own behalf or through a receiver or agent:

 

(a)                                 solely and exclusively exercise all voting and/or consensual powers pertaining to the Mortgaged Property or any part thereof and may exercise such powers in such manner as the Mortgagee may think fit;

 

7



 

(b)                                 date and present to the Company or any other person any undated documents provided to it pursuant to Clause 3 or any other provision of this Mortgage, including to remove the then existing directors and officers (with or without cause) by dating and presenting the undated, signed letters of resignation delivered pursuant to this Mortgage to appoint such persons as directors of the Company as it shall deem appropriate;

 

(c)                                  receive and retain all dividends, interest or other moneys or assets accruing on or in respect of the Mortgaged Property or any part thereof, such dividends, interest or other moneys or assets to be held by the Mortgagee, as additional security mortgaged and charged under and subject to the terms of this Mortgage and any such dividends, interest and other moneys or assets received by the Mortgagor after such time shall be held in trust by the Mortgagor for the Mortgagee and paid or transferred to the Mortgagee on demand;

 

(d)                                 subject to the Existing Transfer Restrictions, take possession of, get in, assign, exchange, sell, transfer, grant options over or otherwise dispose of the Mortgaged Property or any part thereof at such place and in such manner and at such price or prices as the Mortgagee may deem fit, and thereupon the Mortgagee shall have the right to deliver, assign and transfer in accordance therewith the Mortgaged Property so sold, transferred, granted options over or otherwise disposed of including by way of changing the ownership of the Mortgaged Shares as shown on the Register of Members;

 

(e)                                  borrow or raise money either unsecured or on the security of the Mortgaged Property (either in priority to the Mortgage or otherwise);

 

(f)                                   settle, adjust, refer to arbitration, compromise and arrange any claims, accounts, disputes, questions and demands with or by any person who is or claims to be a creditor of the Mortgagor or relating to the Mortgaged Property;

 

(g)                                  bring, prosecute, enforce, defend and abandon actions, suits and proceedings in relation to the Mortgaged Property or any business of the Mortgagor;

 

(h)                                 redeem any security (whether or not having priority to the Mortgage) over the Mortgaged Property and to settle the accounts of any person with an interest in the Mortgaged Property;

 

(i)                                     exercise and do (or permit the Mortgagor or any nominee of the Mortgagor to exercise and do) all such rights and things as the Mortgagee would be capable of exercising or doing if it were the absolute beneficial owner of the Mortgaged Property;

 

(j)                                    do anything else it may think fit for the realisation of the Mortgaged Property or incidental to the exercise of any of the rights conferred on the Mortgagee under or by virtue of any document to which the Mortgagor is party; and

 

(k)                                 exercise all rights and remedies afforded to it under this Mortgage and applicable law,

 

6.2                               The Mortgagee shall not be obliged to make any enquiry as to the nature or sufficiency of any payment received by it under this Mortgage or to make any claim or to take any action to collect any moneys assigned by this Mortgage or to enforce any rights or benefits assigned to the Mortgagee by this Mortgage or to which the Mortgagee may at any time be entitled hereunder.

 

6.3                               Upon any sale of the Mortgaged Property or any part thereof by the Mortgagee, the purchaser shall not be bound to see or enquire whether the Mortgagee’s power of sale has become exercisable in the manner provided in this Mortgage and the sale shall be deemed to be within the power of the Mortgagee, and the receipt of the Mortgagee for the purchase money shall effectively discharge the purchaser who shall not be concerned with the manner of application of the proceeds of sale or be in any way answerable therefor.

 

8



 

6.4                               Any money received or realised under the powers conferred by this Mortgage shall be paid or applied in the order as set out in clause 24.4 (Partial payments) of the Facility Agreement.

 

6.5                               Until all Secured Obligations have been unconditionally and irrevocably paid and discharged in full, the Mortgagee may refrain from applying or enforcing any other moneys, security or rights held by it in respect of the Secured Obligations or may apply and enforce such moneys, security or rights in such manner and in such order as it shall decide in its unfettered discretion.

 

6.6                               Neither the Mortgagee nor its agents, managers, officers, employees, delegates and advisers shall be liable for any claim, demand, liability, loss, damage, cost or expense incurred or arising in connection with the exercise or purported exercise of any rights, powers and discretions hereunder in the absence of dishonesty or wilful default.

 

6.7                               The Mortgagee shall not by reason of the taking of possession of the whole or any part of the Mortgaged Property or any part thereof be liable to account as mortgagee-in-possession or for anything except actual receipts or be liable for any loss upon realisation or for any default or omission for which a mortgagee-in-possession might be liable.

 

7.                                      APPOINTMENT OF A RECEIVER

 

7.1                               At any time after the occurrence of an Enforcement Event, then notwithstanding the terms of any other agreement between the Mortgagor and any person, the Mortgagee may (unless precluded by law) appoint in writing any person or persons to be a receiver or receiver and manager of all or any part of the Mortgaged Property as the Mortgagee may choose in its entire discretion.

 

7.2                               Where more than one receiver is appointed, the appointees shall have power to act jointly or separately unless the Mortgagee shall specify to the contrary.

 

7.3                               The Mortgagee may from time to time determine the remuneration of a receiver.

 

7.4                               The Mortgagee may remove a receiver from all or any of the Mortgaged Property of which he is the receiver and after the receiver has vacated office or ceased to act in respect of any of the Mortgaged Property, appoint a further receiver over all or any of the Mortgaged Property in respect of which he shall have ceased to act.

 

7.5                               Such an appointment of a receiver shall not preclude:

 

(a)                                 the Mortgagee from making any subsequent appointment of a receiver over all or any Mortgaged Property over which a receiver has not previously been appointed or has ceased to act; or

 

(b)                                 the appointment of an additional receiver to act while the first receiver continues to act.

 

7.6                               The receiver shall be the agent of the Mortgagor (which shall be solely liable for his acts, defaults and remuneration). The receiver shall not at any time become the agent of the Mortgagee.

 

8.                                      POWERS OF A RECEIVER

 

8.1                               In addition to those powers conferred by law, a receiver shall have and be entitled to exercise in relation to the Mortgagor all the powers set out below:

 

(a)                                 to exercise all rights of the Mortgagee under or pursuant to this Mortgage including all voting and other rights attaching to the Mortgaged Property;

 

(b)                                 to make any arrangement or compromise with others as he shall think fit;

 

9



 

(c)                                  to appoint managers, officers and agents for the above purposes at such remuneration as the receiver may determine;

 

(d)                                 to redeem any prior encumbrance and settle and pass the accounts of the encumbrancer and any accounts so settled and passed shall (subject to any manifest error) be conclusive and binding on the Mortgagor and the money so paid shall be deemed an expense properly incurred by the receiver;

 

(e)                                  to pay the proper administrative charges in respect of time spent by his agents and employees in dealing with matters raised by the receiver or relating to the receivership of the Mortgagor; and

 

(f)                                   to do all such other acts and things as may be considered by the receiver to be incidental or conducive to any of the above matters or powers or otherwise incidental or conducive to the preservation, improvement or realisation of the Mortgaged Property or the value thereof.

 

9.                                      FURTHER ASSURANCES

 

9.1                               The Mortgagor shall at its own expense promptly do all such acts or execute all such documents (including assignments, transfers, mortgages, charges, notices and instructions) as the Mortgagee may specify and in such form as the Mortgagee may reasonably require in order to:

 

(a)                                 perfect or protect the security created or intended to be created under or evidenced by this Mortgage (which may include the execution of a legal mortgage, charge, assignment or other security over all or any of the assets which are, or are intended to be, the subject of this Mortgage) or for the exercise of any rights, powers and remedies of the Mortgagee provided by or pursuant to this Mortgage, the Finance Documents or by law;

 

(b)                                 confer on the Mortgagee security over any property and assets of the Mortgagor located in any jurisdiction which is (to the extent permitted by local law) equivalent or similar to the security intended to be conferred by or pursuant to this Mortgage; or

 

(c)                                  following an Enforcement Event, facilitate the realisation of the assets which are, or are intended to be, the subject of this Mortgage.

 

9.2                               Without limiting the other provisions of this Mortgage, the Mortgagor shall at its own expense take all such action as is available to it (including making all filings and registrations) as may be necessary for the purpose of the creation, perfection, protection or maintenance of any security conferred or intended to be conferred on the Mortgagee by or pursuant to this Mortgage.

 

10.                               INDEMNITIES

 

10.1                        The Mortgagor will indemnify and save harmless the Mortgagee, any receiver and each agent or attorney appointed under or pursuant to this Mortgage from and against any and all expenses, claims, liabilities, losses, taxes, costs, duties, fees and charges suffered, incurred or made by the Mortgagee or such agent or attorney:

 

(a)                                 in the exercise or purported exercise of any rights, powers or discretions vested in them pursuant to this Mortgage;

 

(b)                                 in the preservation or enforcement of the Mortgagee’s rights under this Mortgage or the priority thereof;

 

(c)                                  on the release of any part of the Mortgaged Property from the security created by this Mortgage; or

 

10



 

(d)                                 arising out of any breach by the Mortgagor of any term of this Mortgage,

 

and the Mortgagee or such receiver, agent or attorney may retain and pay all sums in respect of the same out of money received under the powers conferred by this Mortgage. All amounts suffered, incurred or paid by the Mortgagee or such receiver, agent or attorney or any of them shall be recoverable on a full indemnity basis provided that nothing in this Clause 10.1 shall require the Mortgagor to indemnify and save harmless the Mortgagee from and against any expenses, claims, liabilities, losses, taxes, costs, duties, fees and charges suffered, incurred or made by the Mortgagee as a result of the Mortgagee’s dishonesty or wilful default.

 

10.2                        If, under any applicable law or regulation, and whether pursuant to a judgment being made or registered against the Mortgagor or the bankruptcy or liquidation of the Mortgagor or for any other reason any payment under or in connection with this Mortgage is made or fails to be satisfied in a currency (the “Payment Currency”) other than the currency in which such payment is due under or in connection with this Mortgage (the “Contractual Currency”), then to the extent that the amount of such payment actually received by the Mortgagee when converted into the Contractual Currency at the rate of exchange, falls short of the amount due under or in connection with this Mortgage, the Mortgagor, as a separate and independent obligation, shall indemnify and hold harmless the Mortgagee against the amount of such shortfall. For the purposes of this Clause 10.2, “rate of exchange” means the rate at which the Mortgagee is able on or about the date of such payment to purchase the Contractual Currency with the Payment Currency and shall take into account any premium and other costs of exchange with respect thereto.

 

10.3                        All payments to be made to the Mortgagee under this Mortgage shall be made free and clear of and without deduction for or on account of tax unless the Mortgagor is required to make such payment subject to the deduction or withholding of tax, in which case the sum payable by the Mortgagor in respect of which such deduction or withholding is required to be made shall be increased to the extent necessary to ensure that, after the making of such deduction or withholding, the person on account of whose liability to tax such deduction or withholding has been made receives and retains (free from any liability in respect of any such deduction or withholding) a net sum equal to the sum which it would have received and so retained had no such deduction or withholding been made or required to be made.

 

11.                               POWER OF ATTORNEY

 

The Mortgagor, by way of security and in order more fully to secure the performance of its obligations hereunder, hereby irrevocably appoints the Mortgagee and the persons deriving title under it (including, but without any limitation, any receiver) jointly and also severally (with full power of substitution and delegation) to be its attorney-in-fact:

 

(a)                                 to execute and complete in favour of the Mortgagee or its nominees or of any purchaser any documents which the Mortgagee may from time to time require for perfecting the Mortgagee’s title to, for vesting any of the assets and property hereby mortgaged or charged in the Mortgagee or its nominees or in any purchaser or for any of the purposes contemplated in Clause 6.1 hereof;

 

(b)                                 to give effectual discharges for payments, to take and institute on non-payment (if the Mortgagee in its sole discretion so decides) all steps and proceedings in the name of the Mortgagor or of the Mortgagee for the recovery of such moneys, property and assets hereby mortgaged or charged;

 

(c)                                  to agree accounts and make allowances and give time or other indulgence to any surety or other person liable;

 

(d)                                 so as to enable the Mortgagee to carry out in the name of the Mortgagor any obligation imposed on the Mortgagor by this Mortgage (including the execution and delivery of any deeds, charges, assignments or other security and any transfers of

 

11



 

the Mortgaged Property and the exercise of all the Mortgagor’s rights and discretions in relation to the Mortgaged Property);

 

(e)                                  so as to enable the Mortgagee and any receiver or other person to exercise, or delegate the exercise of, any of the rights, powers and authorities conferred on them by or pursuant to this Mortgage or by law (including the exercise of any right of a legal and beneficial owner of the Mortgaged Property); and

 

(f)                                   generally for it and in its name and on its behalf and as its act and deed or otherwise execute, seal and deliver and otherwise perfect and do any such legal assignments and other assurances, charges, authorities and documents over the moneys, property and assets hereby charged, and all such deeds, instruments, acts and things which may be required for the full exercise of all or any of the powers conferred or which may be deemed proper on or in connection with any of the purposes aforesaid,

 

provided that, prior to an Enforcement Event, each such power shall only be exercisable by the Mortgagee to the extent that the Mortgagor is required to take such action pursuant to the terms of this Mortgage or any other Finance Document and does not take such action in accordance with the terms thereof (for the avoidance of doubt, following an Enforcement Event, each such power shall be exercisable by the Mortgagee in any case and is not conditional upon the Mortgagor having failed to take such action).

 

11.2                        The power hereby conferred shall be a general power of attorney and the Mortgagor hereby ratifies and confirms and agrees to ratify and confirm any instrument, act or thing which any attorney appointed pursuant hereto may execute or do. In relation to the power referred to herein, the exercise by the Mortgagee of such power shall be conclusive evidence of its right to exercise the same.

 

12.                               RELEASE

 

12.1                        Subject to Clause 12.2, upon discharge and satisfaction in full of the Secured Obligations, the Mortgagee shall (at the request and cost of the Mortgagor) execute such documents and do all such reasonable acts as may be necessary to release the Mortgaged Property from the security constituted by this Mortgage (including, without limitation, the prompt return of any Transfer of Ownership Forms or proxies). Such release shall not prejudice the rights of the Mortgagee under Clause 10.

 

12.2                        If the Mortgagee considers in good faith that any amount received in payment or purported payment of the Secured Obligations is capable of being avoided or reduced by virtue of any insolvency or other similar laws:

 

(a)                                 the liability of the Mortgagor under this Mortgage and the security constituted by this Mortgage shall continue and such amount shall not be considered to have been irrevocably paid; and

 

(b)                                 the Mortgagee may keep any security held by it in respect of the Mortgagor’s liability under the Finance Documents in order to protect the Mortgagee against any possible claim under insolvency law. If a claim is made against the Mortgagee prior to the discharge of any such security, the Mortgagee may keep the security until that claim has finally been dealt with.

 

13.                               NOTICES

 

13.1                        Any notice or other communication given or made under or in connection with the matters contemplated by this Mortgage shall be in accordance with the provisions of clause 26 (Notices) of the Facility Agreement.

 

12



 

14.                               ASSIGNMENTS

 

14.1                        This Mortgage shall be binding upon and shall enure to the benefit of the Mortgagor, the Mortgagee and each of their respective successors and (subject as hereinafter provided) assigns and references in this Mortgage to any of them shall be construed accordingly.

 

14.2                        The Mortgagor may not assign or transfer all or any part of its rights and/or obligations under this Mortgage.

 

14.3                        The Mortgagee may assign or transfer all or any part of its rights or obligations under this Mortgage only in accordance with the terms of clause 22 (Changes to the parties) of the Facility Agreement.

 

15.                               SET-OFF

 

15.1                        The Mortgagor authorises the Mortgagee (but the Mortgagee shall not be obliged to exercise such right), after the occurrence of an Enforcement Event, to set-off against the Secured Obligations any amount or other obligation (contingent or otherwise) owing by the Mortgagee to the Mortgagor.

 

16.                               SUBSEQUENT SECURITY

 

16.1                        If the Mortgagee at any time receives or is deemed to have received notice of any subsequent Security affecting all or any part of the Mortgaged Property or any assignment or transfer of the Mortgaged Property which is prohibited by the terms of this Mortgage, all payments thereafter by or on behalf of the Mortgagor to the Mortgagee shall be treated as having been credited to a new account of the Mortgagor and not as having been applied in reduction of the Secured Obligations as at the time when the Mortgagee received such notice.

 

17.                               COSTS AND EXPENSES

 

17.1                        The provisions of clause 16 (Costs and expenses) of the Facility Agreement shall apply to this Mortgage.

 

18.                               MISCELLANEOUS

 

18.1                        The Mortgagee, at any time and from time to time, may delegate by power of attorney or in any other manner to any person or persons all or any of the powers, authorities and discretions which are for the time being exercisable by the Mortgagee under this Mortgage in relation to the Mortgaged Property or any part thereof. Any such delegation may be made upon such terms and be subject to such regulations as the Mortgagee may think fit. The Mortgagee shall not be in any way liable or responsible to the Mortgagor for any loss or damage arising from any act, default, omission or misconduct on the part of any such delegate provided the Mortgagee has acted reasonably in selecting such delegate.

 

18.2                        If any of the clauses, conditions, covenants or restrictions (the “Provision”) of this Mortgage or any deed or document emanating from it shall be found to be void but would be valid if some part thereof were deleted or modified, then the Provision shall apply with such deletion or modification as may be necessary to make it valid and effective.

 

18.3                        This Mortgage (together with any documents referred to herein) constitutes the whole agreement between the Parties relating to its subject matter and no variations hereof shall be effective unless made in writing and signed by each of the Parties.

 

18.4                        Each document, instrument, statement, report, notice or other communication delivered in connection with this Mortgage shall be in English or where not in English shall be accompanied by a certified English translation which translation shall with respect to all documents of a contractual nature and all certificates and notices to be delivered hereunder be the governing version and upon which in all cases the Mortgagee shall be entitled to rely.

 

13



 

18.5                        This Mortgage may be executed in counterparts each of which when executed and delivered shall constitute an original but all such counterparts together shall constitute one and the same instrument.

 

18.6                        The Parties intend that this Mortgage takes effect as a deed notwithstanding the fact that the Mortgagee may only execute it under hand.

 

18.7                        Unless expressly provided to the contrary in this Mortgage, a person who is not a party to this Mortgage shall not have any rights under the Contracts (Rights of Third Parties) Law, 2014 (the “CRTP Law”) to enforce or to enjoy the benefit of any term of this Mortgage.

 

18.8                        Any receiver, agent, attorney or delegate will have the right to enforce the provisions of this Mortgage which are given in its favour.

 

18.9                        Notwithstanding any term of this Mortgage, the consent of or notice to any receiver, agent, attorney, delegate or other person who is not a party to this Mortgage shall not be required for any termination, rescission or agreement to any variation, waiver, assignment, novation, release or settlement under this Mortgage at any time.

 

19.                               LAW AND JURISDICTION

 

19.1                        This Mortgage shall be governed by and construed in accordance with the laws of the Cayman Islands and the Parties hereby irrevocably submit to the exclusive jurisdiction of the courts of the Cayman Islands, provided that nothing in this clause shall affect the right of the Mortgagee to serve process in any manner permitted by law or limit the right of the Mortgagee to take proceedings with respect to this Mortgage against the Mortgagor in any jurisdiction nor shall the taking of proceedings with respect to this Mortgage in any jurisdiction preclude the Mortgagee from taking proceedings with respect to this Mortgage in any other jurisdiction, whether concurrently or not.

 

19.2                        The Mortgagor agrees that the process by which any proceedings in the Cayman Islands are begun may be served on it by being delivered to the process agent referred to below.

 

19.3                        Without prejudice to any other mode of service allowed under any relevant law, the Mortgagor:

 

(a)                                 irrevocably appoints the Company as its agent for service of process in relation to any proceedings before the Cayman Islands courts in connection with this Mortgage and confirms that such agent for service of process has duly accepted such appointment; and

 

(b)                                 agrees that failure by the process agent to notify the Mortgagor of the process will not invalidate the proceedings concerned.

 

19.4                        If the appointment of the person mentioned in Clause 19.3 ceases to be effective, the Mortgagor shall immediately appoint another person in the Cayman Islands to accept service of process on its behalf. If the Mortgagor fails to do so, the Mortgagee shall be entitled to appoint such a person by notice to the Mortgagor. Nothing contained herein shall restrict the right to serve process in any other manner allowed by law.

 

IN WITNESS whereof this Deed has been executed by the Parties on the day and year first above written.

 

14



 

The Mortgagor

 

EXECUTED AS A DEED for and on behalf of NEW

)

 

WAVE MMXV LIMITED:

)

/s/ Charles Chao

 

)

Duly Authorised Signatory

 

)

 

 

)

Name;

Charles Chao

 

)

Title:

Director

 

)

 

 

in the presence of

 

 

 

 

 

/s/ Bonnie Zhang

 

Signature of Witness

 

 

 

Name:

Bonnie Zhang

 

 

Address: 20/F Beijing Ideal International Plaza, No. 58 North 4th Ring Road West

Haidian District, Beijing 100080, People’s Republic of China

 

The Mortgagee

 

 

 

 

 

EXECUTED AS A DEED for and on behalf of

)

 

CREDIT SUISSE AG HONG KONG BRANCH:

)

/s/ Davide Catalano

 

)

Duly Authorised Signatory

 

)

 

 

)

Name;

Davide Catalano

 

)

Title:

Director

 

)

 

 

in the presence of

 

 

 

 

 

 

 

 

 

 

 

 

 

 

/s/ Charry Wong

 

/s/ Leo Chan

 

 

Signature of Witness

 

 

 

 

 

 

 

 

 

Name:

Charry Wong

 

Name:

Leo Chan

 

Title:

Vice President

 

Address: Level 88, International Commerce Centre, 1 Austin Road West, Hong Kong

 



 

Schedule 1

 



 

GRAPHIC

 



 

GRAPHIC

 



 

SCHEDULE 2

 

SINA Corporation

 

IRREVOCABLE APPOINTMENT OF PROXY AND POWER OF ATTORNEY

 

We, NEW WAVE MMXV LIMITED, hereby irrevocably appoint CREDIT SUISSE AG HONG KONG BRANCH as our:

 

1.                                      proxy to vote at meetings of the Shareholders of SINA Corporation (the “Company”) in respect 11,000,000 ordinary shares in the Company which have been or may from time to time be issued and/or registered in our name (the “Shares”); and

 

2.                                      duly authorised representative and duly appointed attorney-in-fact to sign resolutions in writing of the Company in respect of any Shares.

 

This proxy and this power of attorney are irrevocable by reason of being coupled with the interest of CREDIT SUISSE AG HONG KONG BRANCH as mortgagee of the aforesaid Shares.

 

This proxy and power of attorney shall only be exercisable after the occurrence of an Enforcement Event as defined in the equitable share mortgage dated on or about the date of this Deed between us and CREDIT SUISSE AG HONG KONG BRANCH.

 

IN WITNESS whereof this Deed has been executed on                                     2015.

 

EXECUTED AS A DEED for and on behalf of NEW )

WAVE MMXV LIMITED:

 

 

 

)

Duly Authorised Signatory

 

 

 

 

)

Name:

 

 

 

 

 

 

)

Title:

 

 

 

in the presence of:

 

 

 

 

 

 

 

 

 

 

 

Signature of Witness

 

 

 

 

 

Name:

 

 

 

 

 

 

 

Address:

 

 

 

 

3




Exhibit E

 


 

REGISTRATION RIGHTS AGREEMENT

 


 

between

 

NEW WAVE MMXV LIMITED

 

and

 

SINA CORPORATION

 

Dated as of November 6, 2015

 

1



 

REGISTRATION RIGHTS AGREEMENT

 

REGISTRATION RIGHTS AGREEMENT, dated as of November 6, 2015 (the “Agreement”), between NEW WAVE MMXV LIMITED, a British Virgin Islands company controlled by Mr. Charles Chao (“New Wave”), and SINA CORPORATION, a company organized under the laws of the Cayman Islands (the “Company”).

 

WHEREAS, the Company and Mr. Charles Chao entered into a Subscription Agreement dated June 1, 2015 (the “Subscription Agreement”), pursuant to which, upon the terms and subject to the conditions thereof, New Wave, a special purpose vehicle owned and controlled by Mr. Charles Chao, acquired on the Closing Date (as defined below), 11,000,000 ordinary shares (the “Subscription Shares”) of the Company, par value US$0.133 each (the “Shares”);

 

WHEREAS, pursuant to the Subscription Agreement, the Company agrees to enter into a registration rights agreement with New Wave on or prior to the Closing Date (as defined below), pursuant to which the Company will provide New Wave certain registration rights with respect to the Subscription Shares; and

 

WHEREAS, certain terms used in this Agreement are defined in Section 1.

 

NOW, THEREFORE, in consideration of the premises and the mutual agreements and covenants hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

 

1.                                      Definitions.

 

(a)                                 For purposes of this Agreement:

 

Closing Date” means November 6, 2015.

 

Control” (including the terms “controlled by” and “under common control with”), with respect to the relationship between or among two or more Persons, means the possession, directly or indirectly or as trustee, personal representative or executor, of the power to direct or cause the direction of the affairs or management of a Person, whether through the ownership of voting securities, as trustee, personal representative or executor, by contract, credit arrangement or otherwise.

 

Equity Securities” means the ordinary shares of the Company, and all direct or indirect options, warrants, convertible securities or other rights to acquire any ordinary shares of the Company or securities or instruments exchangeable or exercisable for, or convertible into, ordinary shares of the Company.

 

Exchange Act” means the United States Securities Exchange Act of 1934, as amended, and all rules and regulations promulgated thereunder.

 

Holder” shall mean New Wave and any transferee to whom Registrable Securities are permitted to be transferred from New Wave, and, in each case, who continues to be entitled to the rights and subject to the obligations of a Holder hereunder.

 

1



 

Lockup Expiration Date” means the date immediately following the six (6) month anniversary of the Closing Date.

 

NASDAQ” means The Nasdaq Stock Market LLC, or any successor entity thereof.

 

Person” means any individual, partnership, firm, corporation, limited liability company, association, trust, unincorporated organization or other entity, as well as any syndicate or group that would be deemed to be a person under Section 13(d)(3) of the Exchange Act.

 

Registrable Securities” means any and all Shares held by a Holder (including any securities issuable or issued or distributed in respect of any such Shares by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization, reorganization, merger, amalgamation, consolidation or otherwise). For purposes of this Agreement, Registrable Securities shall cease to be Registrable Securities when (i) a Registration Statement covering such Registrable Securities has been declared effective under the Securities Act by the SEC and such Registrable Securities have been disposed of pursuant to such effective Registration Statement, (ii) the entire amount of the Registrable Securities proposed to be sold by a Holder in a single sale, in the opinion of counsel satisfactory to the Company and such Holder, each in their reasonable judgment, may be distributed to the public in the United States pursuant to Rule 144 (or any successor provision then in effect) under the Securities Act in any three-month period, (iii) any such Registrable Securities have been sold in a sale made pursuant to Rule 144 (or any successor provision then in effect) under the Securities Act or (iv) such Registrable Securities are saleable pursuant to Rule 144 under the Securities Act.

 

Registration Expenses” means all expenses in connection with or incident to the registration of Registrable Securities hereunder, including (a) all SEC and any NASDAQ registration and filing fees and expenses, (b) all fees and expenses in connection with the registration or qualification of Registrable Securities for offering and sale under the securities or “blue sky” laws of any state or other jurisdiction of the United States of America and, in the case of an underwritten offering, determination of their eligibility for investment under the laws of such jurisdictions as the managing underwriter or underwriters may reasonably designate, including reasonable fees and disbursements, if any, of counsel for the underwriters in connection with such registrations or qualifications and determination, (c) all expenses relating to the preparation, printing, distribution and reproduction of any Registration Statement required to be filed hereunder, each prospectus included therein or prepared for distribution pursuant hereto, each amendment or supplement to the foregoing, the expenses of preparing Registrable Securities in a form for delivery for purchase pursuant to such registration or qualification and the expense of printing or producing any underwriting agreement(s) and agreement(s) among underwriters and any “blue sky” or legal investment memoranda, any selling agreements and all other documents approved for use in writing by the Company to be used in connection with the offering, sale or delivery of Registrable Securities, (d) messenger, telephone and delivery expenses of the Company and out-of-pocket travel expenses incurred by or for the Company’s personnel for travel undertaken for any “road show” made in connection with the offering of securities registered thereby, (e) fees and expenses of any transfer agent and registrar with respect to the delivery of any Registrable Securities and any escrow agent or custodian involved in the offering, (f) fees, disbursements and expenses of counsel of the Company and independent certified public accountants of the Company incurred in connection with the registration, qualification and offering of the Registrable Securities (including the expenses of any opinions or “comfort” letters required by or incident to such performance and compliance), (g) fees, expenses and disbursements of counsel and any other persons retained by the Company, including special experts retained by the Company in connection with such registration, (h) Securities Act liability insurance, if the Company desires such insurance and (i) the fees and expenses incurred by the Company and its advisers in connection with the quotation or listing of Registrable Securities on any securities exchange or automated securities quotation system. Any brokerage commissions attributable to the sale of any of the Registrable Securities, and any commissions, fees, discounts or, except as specified in the immediately preceding sentence, expenses of any underwriter or placement agent incurred in connection with an offering of securities registered in accordance with this Agreement and any fees and expenses of any counsel or other advisors to a Holder and any other out-of-pocket expenses of a Holder shall not be “Registration Expenses.”

 

2



 

Registration Statement” means a Shelf Registration Statement or a Piggy-Back Registration Statement, as the case may be.

 

Relative” means, in relation to any given person, the spouse, parents, siblings and children (natural or legally adopted) of such person and their respective spouses and children (as appropriate).

 

SEC” means the United States Securities and Exchange Commission, or any successor thereto.

 

Securities Act” means the United States Securities Act of 1933, as amended, and all rules and regulations promulgated thereunder.

 

(b)                                 The following terms have the meaning set forth in the Sections set forth below:

 

Term

 

Section

 

 

 

Agreement

 

Preamble

Anniversary Date

 

2(a)

Blackout Period

 

4

Company

 

Preamble

Effective Period

 

2(b)

Indemnified Party

 

8(c)

Indemnifying Party

 

8(c)

Initial Shelf Registration Date

 

2(a)

Maximum Number of Securities

 

3(c)

New Wave

 

Preamble

Participating Piggy-Back Holders

 

3(b)

Piggy-Back Registration

 

3(a)

Piggy-Back Registration Statement

 

3(a)

Shares

 

Recitals

Shelf Registration Statement

 

2(a)

Subscription Agreement

 

Recitals

Subscription Shares

 

Recitals

 

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(c)                                  Interpretation and Rules of Construction. In this Agreement, except to the extent otherwise provided or that the context otherwise requires:

 

(i)                                     The headings in this Agreement are for reference purposes only and do not affect in any way the meaning or interpretation of this Agreement;

 

(ii)                                  Whenever the words “include”, “includes” or “including” are used in this Agreement, they are deemed to be followed by the words “without limitation”;

 

(iii)                               The words “hereof”, “herein” and “hereunder” and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement;

 

(iv)                              The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms;

 

(v)                                 References to a person are also to its successors and permitted assigns; and

 

(vi)                              The use of “or” is not intended to be exclusive unless expressly indicated otherwise.

 

2.                                      Shelf Registration.

 

(a)                                 After the Lockup Expiration Date and upon receipt of a written request from New Wave requesting that the Company effect a registration under the Securities Act covering all or part of the Registrable Securities, and which notice shall specify the number of Registrable Securities for which registration is requested, the Company shall, as soon as is practicable, but in no event later than thirty (30) days (excluding any days which occur during a permitted Blackout Period under Section 4 below) after receipt of such written request, file with the SEC, and use its reasonable best efforts to cause to be declared effective, a registration statement (a “Shelf Registration Statement”, and the date on which such Shelf Registration Statement is declared effective, the “Initial Shelf Registration Date”) on an appropriate form under the Securities Act relating to all of the Registrable Securities that the Company has been so requested to register for sale, to the extent required to permit the disposition (in accordance with the intended method or methods of distribution thereof) of the Registrable Securities so registered; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 2 if such Holder together with the holders of any other securities of the Company entitled to inclusion in such registration, proposes to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than US$10,000,000. The Company shall file with the SEC, and use its reasonable best efforts to cause to be declared effective, a Shelf Registration Statement on each of the second and third anniversaries of the Closing Date (each, an “Anniversary Date”) covering the number of Registrable Securities for which registration is requested pursuant to a written notice from New Wave to the Company at least thirty (30) days prior to each Anniversary Date.

 

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(b)                                 The Company shall use its reasonable best efforts to keep each Shelf Registration Statement continuously effective in order to permit the prospectus included therein to be lawfully delivered by the Holders of the Registrable Securities, for a period of six (6) months (or for such longer period if extended pursuant to Section 5(k) below) from the Initial Shelf Registration Date or the relevant Anniversary Date, as the case may be, or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant thereto (each such period, an “Effective Period”).

 

3.                                      Piggy-Back Registration.

 

(a)                                 If the Company proposes to file on its behalf and/or on behalf of any holder of its securities (other than a Holder of Registrable Securities) a registration statement under the Securities Act on any form (other than a registration statement on Form S-4, F-4 or S-8, or any successor form, for securities to be offered in a transaction of the type referred to in Rule 145 under the Securities Act or to employees of the Company pursuant to any employee benefit plan, respectively) for the registration of Shares (a “Piggy-Back Registration”), it shall give written notice to all Holders at least thirty (30) days before the initial filing with the SEC of such piggy-back registration statement (a “Piggy-Back Registration Statement”), which notice shall set forth the number of Shares that the Company and other holders, if any, then contemplate including in such registration and the intended method of disposition of such Shares. The notice shall offer to include in such filing the aggregate number of Registrable Securities as such Holders may request.

 

(b)                                 If any Holder desires to have Registrable Securities registered under this Section 3 (the “Participating Piggy-Back Holders”), it shall advise the Company in writing within ten (10) days after the date of receipt of such offer from the Company of its desire to have Registrable Securities registered under this Section 3, and shall set forth the number of Registrable Securities for which registration is requested. The Company shall thereupon include, or in the case of a proposed underwritten public offering, use its reasonable best efforts to cause the managing underwriter or underwriters to permit such Holder to include, in such filing the number of Registrable Securities for which registration is so requested, subject to paragraph (c) below, and shall use its reasonable best efforts to effect registration of such Registrable Securities under the Securities Act.

 

(c)                                  If the Piggy-Back Registration relates to an underwritten public offering and the managing underwriter of such proposed public offering advises the Company and the Holders in writing that, in its reasonable opinion, the number of Registrable Securities requested to be included in the Piggy-Back Registration in addition to the securities being registered by the Company or any other security holder would be greater than the total number of securities which can reasonably be sold in the offering without having a material adverse effect on the distribution of such securities or otherwise having a material adverse effect on the marketability thereof (the “Maximum Number of Securities”), then:

 

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(i)                                     in the event the Company initiated the Piggy-Back Registration, the Company shall include in such Piggy-Back Registration first, the securities the Company proposes to register and second, the securities of all other selling security holders, including the Participating Piggy-Back Holders, to be included in such Piggy-Back Registration in an amount that together with the securities the Company proposes to register, shall not exceed the Maximum Number of Securities, such amount to be allocated among such selling security holders on a pro rata basis (based on the number of securities of the Company held by each such selling security holder); and

 

(ii)                                  in the event any holder of securities of the Company initiated the Piggy-Back Registration, the Company shall include in such Piggy-Back Registration first, the securities such initiating security holder proposes to register, second, the securities of any other selling security holders (including the Participating Piggy-Back Holders), in an amount that together with the securities the initiating security holder proposes to register, shall not exceed the Maximum Number of Securities, such amount to be allocated among such other selling security holders on a pro rata basis (based on the number of securities of the Company held by each such selling security holder) and third, any securities the Company proposes to register, in an amount that together with the securities the initiating security holder and the other selling security holders propose to register, shall not exceed the Maximum Number of Securities.

 

(d)                                 the Company shall not hereafter enter into any agreement that is inconsistent with the rights of priority provided in Section 3(c).

 

4.                                      Blackout Periods. The Company shall have the right to delay the filing or effectiveness of a Registration Statement required pursuant to Section 2 or 3 hereof during no more than two (2) periods aggregating to not more than ninety (90) days in any twelve-month period (each, a “Blackout Period”), in the event that (i) the Company would, in accordance with the advice of its counsel, be required to disclose in the prospectus information not otherwise then required by law to be publicly disclosed and (ii) in the good faith judgment of the Company’s Board of Directors, there is a reasonable likelihood that such disclosure, or any other action to be taken in connection with the prospectus, would materially and adversely affect or interfere with any significant financing, acquisition, merger, disposition of assets (not in the ordinary course of business), corporate reorganization or other material transaction or negotiations involving the Company; provided, however, that the Company shall delay during such Blackout Period the filing or effectiveness of any Registration Statement required pursuant to the registration rights of other holders of any securities of the Company. The Company shall promptly give the Holders written notice of such determination containing a general statement of the reasons for such postponement and an approximation of the anticipated delay. After the expiration of any Blackout Period (including upon public disclosure of the information that was the reason for such Blackout Period) and without any further request from any Holder, the Company shall promptly notify the Holders and shall use its reasonable best efforts to prepare and file with the SEC the requisite Registration Statement or such amendments or supplements to such Registration Statement or prospectus used in connection therewith as may be necessary to cause such Registration Statement to become effective as promptly as practicable thereafter.

 

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5.                                      Registration Procedures. If the Company is required by the provisions of Section 2 or 3 to use its reasonable best efforts to effect the registration of any of its securities under the Securities Act, the Company shall, as soon as practicable:

 

(a)                                 prepare and file with the SEC a Registration Statement with respect to such securities and use its reasonable best efforts to cause such Registration Statement to become effective as promptly as practicable and to remain effective for a period of time required for the disposition of such Registrable Securities by the Holders thereof but not to exceed one hundred twenty (120) days (except with respect to a Shelf Registration Statement which shall remain effective during the Effective Period) excluding any days that fall during a permitted Blackout Period under Section 4; provided, however, that before filing such Registration Statement or any amendments or supplements thereto, the Company shall furnish to counsel selected by the Holders copies of all documents proposed to be filed, which documents shall be subject to the review of such counsel, and shall in good faith consider incorporating in each such document such changes as such counsel to the Holders reasonably and in a timely manner may suggest. The Company shall not be deemed to have used its reasonable efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in the Holders of such Registrable Securities not being able to sell such Registrable Securities during that period, unless such action is required under applicable law;

 

(b)                                 prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities covered by such Registration Statement until the earlier of such time as all of such securities have been disposed of in a public offering or the expiration of one hundred twenty (120) days (except with respect to the Shelf Registration Statement, for which such period shall be the Effective Period), excluding any days that fall during a permitted Blackout Period under Section 4;

 

(c)                                  furnish to such selling security holders such number of conformed copies of the applicable Registration Statement and each such amendment and supplement thereto (including in each case all exhibits), such number of copies of the prospectus contained in such Registration Statement (including each preliminary prospectus and any summary prospectus) and any other prospectus, in conformity with the requirements of the Securities Act, and such other documents, as such selling security holders may reasonably request;

 

(d)                                 use its reasonable best efforts to register or qualify the Registrable Securities or other securities covered by such Registration Statement under such other securities or blue sky laws of such jurisdictions within the United States and its territories and possessions as each Holder of such Registrable Securities shall reasonably request, to keep such registration or qualification in effect for so long as such Registration Statement remains in effect or until all of the Registrable Securities are sold, whichever is shorter, and to take any other action which may be reasonably necessary or advisable to enable the Holder to consummate the disposition in such jurisdictions of the securities owned by such Holder (provided, however, that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business as a foreign corporation, subject itself to taxation in or to file a general consent to service of process in any jurisdiction where it would not, but for the requirements of this paragraph (d), be obligated to do so) and do such other reasonable acts and things as may be required of it to enable such Holder to consummate the disposition in such jurisdiction of the securities covered by such Registration Statement;

 

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(e)                                  enter into customary agreements (including if the method of distribution is by means of an underwriting, an underwriting agreement containing representations, warranties and indemnities in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities;

 

(f)                                   otherwise use its reasonable best efforts to comply with all applicable rules and regulations promulgated by the SEC;

 

(g)                                  use its reasonable best efforts to cause all such Registrable Securities to be listed on each securities exchange or quotation system on which the Shares are listed or traded;

 

(h)                                 give written notice to the Holders:

 

(i)                                     when such Registration Statement, the prospectus or any amendment or supplement thereto has been filed with the SEC and when such Registration Statement or any post-effective amendment thereto has become effective;

 

(ii)                                  of any request by the SEC for amendments or supplements to such Registration Statement or the prospectus included therein or for additional information;

 

(iii)                               of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or the initiation of any proceedings for that purpose;

 

(iv)                              of the receipt by the Company or its legal counsel of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and

 

(v)                                 of the happening of any event that requires the Company to make changes in such Registration Statement or such prospectus in order to make the statements therein, in light of the circumstances in which they were made, not misleading (which notice shall be accompanied by an instruction to suspend the use of such prospectus until the requisite changes have been made);

 

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(i)                                     use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of such Registration Statement at the earliest possible time;

 

(j)                                    furnish to each Holder, without charge, at least one copy of such Registration Statement and any post-effective amendment thereto, including financial statements and schedules, and, if the Holder so requests in writing, all exhibits (including those, if any, incorporated by reference);

 

(k)                                 upon the occurrence of any event contemplated by Section 5(h)(v) above, promptly prepare a post-effective amendment to such Registration Statement or a supplement to the related prospectus or file any other required document so that, as thereafter delivered to the Holders, the prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If the Company notifies the Holders in accordance with Section 5(h)(v) above to suspend the use of the prospectus until the requisite changes to the prospectus have been made, then the Holders shall suspend use of such prospectus and use their reasonable best efforts to return to the Company all copies of such prospectus other than permanent file copies then in such Holder’s possession, and the period of effectiveness of such Registration Statement provided for above shall be extended by the number of days from and including the date of the giving of such notice to the date the Holders shall have received such amended or supplemented prospectus pursuant to this Section 5(k);

 

(l)                                     make reasonably available for inspection by representatives of the Holders, any underwriter participating in any disposition pursuant to such Registration Statement, and any attorney, accountant or other agent retained by such representative or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and cause the Company’s officers, directors and employees to supply all relevant information reasonably requested by such representative or any such underwriter, attorney, accountant or agent in connection with the registration;

 

(m)                             in connection with any underwritten offering, make appropriate officers and senior executives of the Company available to the selling security holders for meetings with prospective purchasers of Registrable Securities and prepare and present to potential investors customary “road show” materials in each case in accordance with the recommendations of the underwriters and in all respects in a manner reasonably requested and consistent with other new issuances of securities in an offering of a similar size to such offering of the Registrable Securities; and

 

(n)                                 use reasonable best efforts to procure the cooperation of the Company’s transfer agent in settling any offering or sale of Registrable Securities, including with respect to the transfer of physical stock certificates into book-entry form in accordance with any procedures reasonably requested by the Holders or the underwriters, if any.

 

It shall be a condition precedent to the obligation of the Company to take any action pursuant to this Agreement in respect of the Registrable Securities which are to be registered at the request of any Holder that such Holder shall furnish to the Company such information regarding the Registrable Securities held by such Holder and the intended method of distribution thereof as the Company shall reasonably request and as shall be required in connection with the action taken by the Company.

 

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6.                                      Expenses. All Registration Expenses shall be paid by the Company, except that the Holders shall bear and pay any (a) brokerage commissions attributable to the sale of any of the Registrable Securities, (b) underwriting commissions and discounts applicable to securities offered for such Holder’s account in connection with any registrations, filings and qualifications made pursuant to this Agreement, (c) fees and expenses incurred in respect of counsel to the Holders and (d) any other out-of-pocket expenses of the Holders.

 

7.                                      Rule 144 Information. With a view to making available the benefits of certain rules and regulations of the SEC which may at any time permit the sale of the Registrable Securities to the public without registration, the Company agrees to:

 

(a)                                 make and keep current public information available, as those terms are understood and defined in Rule 144 under the Securities Act;

 

(b)                                 use its reasonable best efforts to file with or furnish to the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act; and

 

(c)                                  furnish to each Holder forthwith upon request a written statement by the Company as to its compliance with the reporting requirements of the Securities Act, the Exchange Act and Rule 144, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such Holder may reasonably request in availing itself of any rule or regulation of the SEC allowing such Holder to sell any Registrable Securities without registration.

 

8.                                      Indemnification and Contribution.

 

(a)                                 The Company shall indemnify and hold harmless each Holder, such Holder’s directors and officers, each agent and any underwriter for the Company (within the meaning of the Securities Act), and each person, if any, who controls such Holder or such agent or underwriter within the meaning of the Securities Act, against any losses, claims, damages or liabilities, joint or several, to which they may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or proceedings in respect thereof) arise out of or are based on any untrue or alleged untrue statement of any material fact contained in a Registration Statement on the effective date thereof (including any prospectus filed under Rule 424 under the Securities Act or any amendments or supplements thereto), or any document incorporated by reference therein, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and shall reimburse each Holder, such Holder’s directors and officers, such agent or underwriter or such controlling person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, proceeding or action; provided, however, that the indemnity agreement contained in this Section 8(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, proceeding or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld or delayed); provided further that the Company shall not be liable to the Holder, such Holder’s directors and officers, such agent or underwriter or such controlling person in any such case for any such loss, claim, damage, liability or action to the extent that it arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in connection with a Registration Statement, preliminary prospectus, final prospectus or amendments or supplements thereto, in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by such Holder, such Holder’s directors or officers, such agent or underwriter or such controlling person or by such Holder’s failure to furnish the Company, upon request, with the information with respect to such Holder or any participating person that is the subject of the untrue statement or omission. The Company shall not, without the consent of the Holders (which consent shall not be unreasonably withheld or delayed), effect any settlement of any pending or threatened proceeding or action in respect of which any Holder is a party and indemnity has been sought hereunder by such Holder, unless such settlement includes an unconditional release of such Holder from all liability for claims that are the subject matter of such proceeding or action. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Holder, such Holder’s directors and officers, such agent or underwriter or such controlling person, and shall survive the transfer of such securities by such Holder.

 

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(b)                                 Each Holder requesting or joining in a registration severally and not jointly shall indemnify and hold harmless the Company, each of its directors and officers, each person, if any, who controls the Company within the meaning of the Securities Act, and each agent and any underwriter for the Company (within the meaning of the Securities Act) against any losses, claims, damages or liabilities, joint or several, to which the Company or any such director, officer, controlling person, agent or underwriter may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or proceedings in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in a Registration Statement on the effective date thereof (including any prospectus filed under Rule 424 under the Securities Act or any amendments or supplements thereto) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in such Registration Statement, preliminary or final prospectus, or amendments or supplements thereto, in reliance upon and in conformity with written information furnished by or on behalf of such Holder expressly for use in connection with such registration, preliminary prospectus, final prospectus or amendments or supplements thereto; and each such Holder shall reimburse any legal or other expenses reasonably incurred by the Company or any such director, officer, controlling person, agent or underwriter in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the indemnity agreement contained in this Section 8(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of such Holder (which consent shall not be unreasonably withheld or delayed), and provided further that the liability of a Holder hereunder shall be limited to the aggregate net proceeds received by such Holder in connection with any offering to which such registration under the Securities Act relates. A Holder shall not, without the consent of the Company (which consent shall not be unreasonably withheld or delayed), effect any settlement of any pending or threatened proceeding or action in respect of which the Company is a party and indemnity has been sought hereunder by the Company, unless such settlement includes an unconditional release of the Company from all liability for claims that are the subject matter of such proceeding or action.

 

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(c)                                  If the indemnification provided for in this Section 8 from the indemnifying party (the “Indemnifying Party”) is unavailable to any person entitled to indemnification hereunder (the “Indemnified Party”) in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the Indemnifying Party, in lieu of indemnifying the Indemnified Party, shall contribute to the amount paid or payable by the Indemnified Party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and the Indemnified Party in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of the Indemnifying Party and the Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, the Indemnifying Party or the Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding. If the allocation provided in this paragraph (c) is not permitted by applicable law, the parties shall contribute based upon the relevant benefits received by the Company from the offering of securities on the one hand and the net proceeds received by the Holders from the sale of securities on the other.

 

The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 8(c) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.

 

(d)                                 The Indemnified Party agrees to give prompt written notice to the Indemnifying Party after the receipt by the Indemnified Party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which the Indemnified Party intends to claim indemnification or contribution pursuant to this Agreement; provided, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of any liability that it may have to the Indemnified Party hereunder unless such failure is materially prejudicial to the Indemnifying Party. If notice of commencement of any such action is given to the Indemnifying Party as above provided, the Indemnifying Party shall be entitled to participate in and, to the extent it may wish, to assume the defense of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such Indemnified Party. The Indemnified Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the reasonable fees and expenses of such counsel shall be paid by the Indemnified Party unless (i) the Indemnifying Party agrees to pay the same, (ii) the Indemnifying Party fails to assume the defense of such action or (iii) the named parties to any such action (including any impleaded parties) have been advised by such counsel that either (A) representation of such Indemnified Party and the Indemnifying Party by the same counsel would be inappropriate under applicable standards of professional conduct or (B) there are one or more legal defenses available to it which are substantially different from or additional to those available to the Indemnifying Party. No Indemnifying Party shall be liable for any settlement entered into without its written consent, which consent shall not be unreasonably withheld or delayed.

 

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(e)                                  The agreements contained in this Section 8 shall survive the transfer of the Registrable Securities by any Holder and sale of all the Registrable Securities pursuant to any Registration Statement and shall remain in full force and effect, regardless of any investigation made by or on behalf of any Holder, such Holder’s directors and officers, any person who participates in the offering of Registrable Securities, including underwriters (as defined in the Securities Act), and any person, if any, who controls any Holder or such participating person within the meaning of the Securities Act.

 

9.                                      No Inconsistent Agreements. The Company shall not hereafter enter into any agreement with respect to its securities that is inconsistent in any material respects with the rights granted to the Holders in this Agreement.

 

10.                               Underwriting Agreement. All Holders proposing to distribute Registrable Securities through an underwritten offering pursuant to this Agreement shall enter into an underwriting agreement in customary form with the underwriter or underwriters. If any Holder of Registrable Securities disapproves of the terms of the underwriting, such Holder may elect to withdraw all its Registrable Securities by written notice to the Company, the managing underwriter and the other Holders participating in such registration. The securities so withdrawn shall also be withdrawn from registration.

 

11.                               “Market Stand-off” Agreement. Each Holder hereby agrees that it will not, without the prior written consent of the managing underwriter, during the period commencing on the date of the final prospectus relating to the registration by the Company for its own behalf of shares of its Ordinary Shares or any other Equity Securities under the Securities Act, and ending on the date specified by the Company and the managing underwriter (such period not to exceed ninety (90) days, which period may be extended upon the request of the managing underwriter, to the extent required by any NASD rules, for an additional period of up to fifteen (15) days if the Company issues or proposes to issue an earnings or other public release within fifteen (15) days of the expiration of the 90-day lockup period)), (i) lend; offer; pledge; sell; contract to sell, sell any option or contract to purchase; purchase any option or contract to sell; grant any option, right, or warrant to purchase; or otherwise transfer or dispose of, directly or indirectly, any Ordinary Shares or any securities convertible into or exercisable or exchangeable (directly or indirectly) for Ordinary Shares held immediately before the effective date of the registration statement for such offering or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of such securities, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Ordinary Shares or other securities, in cash, or otherwise. The foregoing provisions of this Section 11 shall not apply to the sale of any shares to an underwriter pursuant to an underwriting agreement. The underwriters in connection with such registration are intended third-party beneficiaries of this Section 11 and shall have the right, power, and authority to enforce the provisions hereof as though they were a party hereto. Each Holder further agrees to execute such agreements as may be reasonably requested by the underwriters in connection with such registration that are consistent with this Section 11 or that are necessary to give further effect thereto. Any discretionary waiver or termination of the restrictions of any or all of such agreements by the Company or the underwriters shall apply pro rata to all Holders subject to such agreements, based on the number of shares subject to such agreements.

 

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12.                               Restrictions on Transfer. The Registrable Securities shall not be sold, pledged, or otherwise transferred, and the Company shall not recognize and shall issue stop-transfer instructions to its transfer agent with respect to any such sale, pledge, or transfer, except (a) upon the conditions specified in this Agreement, which conditions are intended to ensure compliance with the provisions of the Securities Act or other applicable securities laws, (b) pursuant to an effective registration statement after the Lockup Expiration Date, or (c) pursuant to an available exemption under the Securities Act, including without limitation to Rule 144. A transferring Holder will cause any proposed purchaser, pledgee, or transferee of the Registrable Securities held by such Holder to agree to take and hold such securities subject to the provisions and upon the conditions specified in this Agreement.

 

13.                               Miscellaneous.

 

(a)                                 Effectiveness. This Agreement shall become effective on the Closing Date.

 

(b)                                 Specific Performance. The parties hereto agree that irreparable damage would occur in the event any provision of this Agreement was not performed in accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy at law or in equity.

 

(c)                                  Amendments and Waivers.

 

(i)                                     Any provision of this Agreement may be amended or waived only if such amendment or waiver is in writing and signed, in the case of an amendment, by the Company and the Holders or, in the case of a waiver, by the party or parties against whom the waiver is to be effective.

 

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(ii)                                  No failure or delay by any party hereto in exercising any right, power or privilege hereunder (other than a failure or delay beyond a period of time specified herein) shall operate as a waiver thereof and no single or partial exercise thereof shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.

 

(d)                                 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, by a recognized overnight courier service 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 13(d)):

 

(i)                                     if to the Company:

 

20/F Beijing Ideal International Plaza

No. 58 North 4th Ring Road West

Haidian District, Beijing 100080

People’s Republic of China

 

Fax: (8610)-82607167

Attention: Chair of the Audit Committee

 

(ii)                                  if to New Wave or any Holder:

 

20/F Beijing Ideal International Plaza

No. 58 North 4th Ring Road West

Haidian District, Beijing 100080

People’s Republic of China

 

Fax: (8610)-82607167

Attention: Charles Chao

 

(e)                                  Successors and Assigns; Third Party Beneficiaries. This Agreement shall be binding upon and inure solely to the benefit of each party hereto, and, except as provided in Section 8 hereof, 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. This Agreement may not be assigned by any party hereto without the prior written consent of the other party hereto, except that the registration rights of New Wave with respect to any Registrable Securities may be transferred to (i) any shareholder of New Wave, (ii) any Relative of a shareholder of New Wave or (iii) any corporation, limited liability company, general or limited partnership, trust, association or other business or investment entity that is directly controlled by a shareholder of New Wave; in each case, to which Registrable Securities have been transferred, without the need for consent; provided, however, that (x) the Company is, within a reasonable time after such transfer, furnished with written notice of the name and address of such transferee and the Registrable Securities with respect to which such rights are being transferred; and (y) such transferee agrees in a written instrument delivered to the Company to be bound by and subject to the terms and conditions of this Agreement, including the market stand-off provisions of Section 11. All of the obligations of the Company hereunder shall survive any such transfer.

 

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(f)                                   Headings. The headings and subheadings in this Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent or intent of this Agreement or any provision hereof.

 

(g)                                  Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.

 

(i)                                     Any claim, action, suit or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby may be heard and determined in any New York state or federal court sitting in The City of New York, County of Manhattan, and each of the parties hereto hereby consents to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom in any such claim, action, suit or proceeding) and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any such claim, action, suit or proceeding in any such court or that any such claim, action, suit or proceeding that is brought in any such court has been brought in an inconvenient forum.

 

(ii)                                  Subject to applicable law, process in any such claim, action, suit or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing and subject to applicable law, each party agrees that service of process on such party shall be deemed effective service of process on such party. Nothing herein shall affect the right of any party to serve legal process in any other manner permitted by law or at equity. WITH RESPECT TO ANY SUCH CLAIM, ACTION, SUIT OR PROCEEDING IN ANY SUCH COURT, EACH OF THE PARTIES IRREVOCABLY WAIVES AND RELEASES TO THE OTHER ITS RIGHT TO A TRIAL BY JURY, AND AGREES THAT IT WILL NOT SEEK A TRIAL BY JURY IN ANY SUCH PROCEEDING.

 

(h)                                 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 hereby. Each of the parties hereto (i) 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 that foregoing waiver and (ii) acknowledges that it and the other party hereto have been induced to enter into this Agreement and the transactions contemplated hereby, as applicable, by, among other things, the mutual waivers and certifications in this Section 13(h).

 

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(i)                                     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 contemplated hereby is not affected in any manner materially 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 contemplated hereby be consummated as originally contemplated to the fullest extent possible.

 

(j)                                    Entire Agreement. This Agreement and the Subscription Agreement constitute the entire agreement between the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and undertakings, both written and oral, between the parties with respect to the subject matter hereof and thereof.

 

(k)                                 Cumulative Remedies. The rights and remedies provided by this Agreement are cumulative and the use of any one right or remedy by any party hereto shall not preclude or waive its right to use any or all other remedies. Such rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance or otherwise.

 

(l)                                     Construction. Each party hereto acknowledges and agrees it has had the opportunity to draft, review and edit the language of this Agreement and that no presumption for or against any party arising out of drafting all or any part of this Agreement will be applied in any dispute relating to, in connection with or involving this Agreement. Accordingly, the parties hereto hereby waive the benefit of any rule of law or any legal decision that would require, in cases of uncertainty, that the language of a contract should be interpreted most strongly against the party who drafted such language.

 

(m)                             Counterparts. This Agreement may be executed and delivered (including by 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.

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.

 

 

 

NEW WAVE MMXV LIMITED

 

 

 

 

 

 

 

By:

/s/ Charles Chao

 

 

Name: Charles Chao

 

 

Title: Director

 

 

 

 

 

 

 

SINA CORPORATION

 

 

 

 

 

 

 

By:

/s/ Bonnie Yi Zhang

 

 

Name: Bonnie Yi Zhang

 

 

Title: Chief Financial Officer

 

[Signature Page to Registration Rights Agreement]

 


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