| CUSIP No. 91818X108 |
13D |
Page 1
of 21 |
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
SCHEDULE
13D
Under the Securities Exchange Act of 1934
(Amendment No. 8)*
Uxin
Limited |
| (Name of Issuer) |
| |
| Class A ordinary
shares, par value $0.0001 per share |
| (Title of Class of Securities) |
| |
| 91818X108** |
| (CUSIP Number) |
| |
Ning Zhang
Morgan, Lewis & Bockius, LLP
Beijing Kerry Centre South Tower, Suite 823
No. 1 Guang Hua Road, Chaoyang District,
Beijing 100020, China
|
(Name, Address and Telephone
Number of Person
Authorized to Receive Notices and Communications) |
| |
August 17,
2023 |
| (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 of §§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 the disclosures provided in a prior cover page.
** This CUSIP number pertains to the Issuer’s American Depositary
Shares, each representing thirty Class A Ordinary Shares.
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).
| CUSIP No. 91818X108 |
13D |
Page 2
of 21 |
| 1 |
NameS
of Reporting PersonS.
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
| Astral
Success Limited |
| 2 |
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
|
|
(a) |
¨ |
| |
|
(b) |
¨ |
| 3 |
SEC
USE ONLY |
| |
| 4 |
SOURCE
OF FUNDS* (See Instructions) |
| OO |
| 5 |
CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR
2(e) |
|
¨ |
| |
|
|
| 6 |
citizenship
or place of organization |
| BVI |
NUMBER
OF SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH |
7 |
sole
voting power |
| 1,859,956,2361 |
| 8 |
shared
voting power |
| |
| 9 |
sole
dispositive power |
| 1,859,956,236 |
| 10 |
shared
dispositive power |
| |
| 11 |
aggregate
amount beneficially owned by each reporting person |
| 1,859,956,236 |
| 12 |
check
if the aggregate amount in row (11) excludes certain shares (See INstructions)* |
|
¨ |
| |
|
|
| 13 |
percent
of class represented by amount in row (11) |
| 57.58%2 |
| 14 |
type
of reporting person* |
| CO |
*SEE INSTRUCTION BEFORE FILLING OUT
1
Represents 1,859,956,236 Class A Ordinary Shares of the Issuer that may be acquired upon conversion of 437,286,192 Senior
Convertible Preferred Shares issued to Astral pursuant to the Subscription Agreement and the Warrant held by Astral, which is the sum
of (i) 1,641,137,856 Class A Ordinary Shares that may be acquired upon conversion of 218,467,812 Senior Convertible Preferred Shares
held by Astral reflecting the Anti-dilution Adjustment (as described in Item 4), and (ii) 218,818,380 Class A Ordinary Shares that may
be acquired upon conversion of 218,818,380 Senior Convertible Preferred Shares held by Astral.
2
The calculation assumes that there is a total of 3,230,100,170 Class A Ordinary Shares outstanding, which is the sum of
the (i) 1,370,143,934 Class A Ordinary Shares outstanding (excluding 1,383,862 Class A Ordinary Shares issued to the Issuer’s depositary
bank for bulk issuance of ADSs reserved for future issuances upon the exercise or vesting of awards granted under the Issuer’s
share incentive plan), and (ii) 1,859,956,236 Class A Ordinary Shares that may be acquired upon conversion of 437,286,192 Senior Convertible
Preferred Shares issued to Astral pursuant to the Subscription Agreement and the Warrant held by Astral.
| CUSIP No. 91818X108 |
13D |
Page 3
of 21 |
| 1 |
NameS
of Reporting PersonS.
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
| Joy
Capital Opportunity, L.P. |
| 2 |
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
|
|
(a) |
¨ |
| |
|
(b) |
¨ |
| 3 |
SEC
USE ONLY |
| |
| 4 |
SOURCE
OF FUNDS* (See Instructions) |
| OO |
| 5 |
CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR
2(e) |
|
¨ |
| |
|
|
| 6 |
citizenship
or place of organization |
| Cayman
Islands |
NUMBER
OF SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH |
7 |
sole
voting power |
| |
| 8 |
shared
voting power |
| 1,859,956,236 |
| 9 |
sole
dispositive power |
| |
| 10 |
shared
dispositive power |
| 1,859,956,236 |
| 11 |
aggregate
amount beneficially owned by each reporting person |
| 1,859,956,236 |
| 12 |
check
if the aggregate amount in row (11) excludes certain shares (See INstructions)* |
|
¨ |
| |
|
|
| 13 |
percent
of class represented by amount in row (11) |
| 57.58% |
| 14 |
type
of reporting person* |
| PN |
*SEE INSTRUCTION BEFORE FILLING OUT
| CUSIP No. 91818X108 |
13D |
Page 4
of 21 |
| 1 |
NameS
of Reporting PersonS.
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
| Joy
Capital Opportunity GP, L.P. |
| 2 |
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| |
|
(a) |
¨ |
| |
|
(b) |
¨ |
| 3 |
SEC
USE ONLY |
| |
| 4 |
SOURCE
OF FUNDS* (See Instructions) |
| OO |
| 5 |
CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR
2(e) |
|
¨ |
| |
|
|
| 6 |
citizenship
or place of organization |
| Cayman
Islands |
NUMBER
OF SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH |
7 |
sole
voting power |
| |
| 8 |
shared
voting power |
| 1,859,956,236 |
| 9 |
sole
dispositive power |
| |
| 10 |
shared
dispositive power |
| 1,859,956,236 |
| 11 |
aggregate
amount beneficially owned by each reporting person |
| 1,859,956,236 |
| 12 |
check
if the aggregate amount in row (11) excludes certain shares (See INstructions)* |
|
¨ |
| |
|
|
| 13 |
percent
of class represented by amount in row (11) |
| 57.58% |
| 14 |
type
of reporting person* |
| PN |
*SEE INSTRUCTION BEFORE FILLING OUT
| CUSIP No. 91818X108 |
13D |
Page 5
of 21 |
| 1 |
NameS
of Reporting PersonS.
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
| Joy
Capital II, L.P. |
| 2 |
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| |
|
(a) |
¨ |
| |
|
(b) |
¨ |
| 3 |
SEC
USE ONLY |
| |
| 4 |
SOURCE
OF FUNDS* (See Instructions) |
| OO |
| 5 |
CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR
2(e) |
|
¨ |
| |
|
|
| 6 |
citizenship
or place of organization |
| Cayman
Islands |
NUMBER
OF SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH |
7 |
sole
voting power |
| |
| 8 |
shared
voting power |
| 1,859,956,236 |
| 9 |
sole
dispositive power |
| |
| 10 |
shared
dispositive power |
| 1,859,956,236 |
| 11 |
aggregate
amount beneficially owned by each reporting person |
| 1,859,956,236 |
| 12 |
check
if the aggregate amount in row (11) excludes certain shares (See INstructions)* |
|
¨ |
| |
|
|
| 13 |
percent
of class represented by amount in row (11) |
| 57.58% |
| 14 |
type
of reporting person* |
| PN |
*SEE INSTRUCTION BEFORE FILLING OUT
| CUSIP No. 91818X108 |
13D |
Page 6
of 21 |
| 1 |
NameS
of Reporting PersonS.
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
| Joy
Capital II GP, L.P. |
| 2 |
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| |
|
(a) |
¨ |
| |
|
(b) |
¨ |
| 3 |
SEC
USE ONLY |
| |
| 4 |
SOURCE
OF FUNDS* (See Instructions) |
| OO |
| 5 |
CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR
2(e) |
|
¨ |
| |
|
|
| 6 |
citizenship
or place of organization |
| Cayman
Islands |
NUMBER
OF SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH |
7 |
sole
voting power |
| |
| 8 |
shared
voting power |
| 1,859,956,236 |
| 9 |
sole
dispositive power |
| |
| 10 |
shared
dispositive power |
| 1,859,956,236 |
| 11 |
aggregate
amount beneficially owned by each reporting person |
| 1,859,956,236 |
| 12 |
check
if the aggregate amount in row (11) excludes certain shares (See INstructions)* |
|
¨ |
| |
|
|
| 13 |
percent
of class represented by amount in row (11) |
| 57.58% |
| 14 |
type
of reporting person* |
| PN |
*SEE INSTRUCTION BEFORE FILLING OUT
| CUSIP No. 91818X108 |
13D |
Page 7
of 21 |
| 1 |
NameS
of Reporting PersonS.
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
| Joy Capital III, L.P. |
| 2 |
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| |
|
(a) |
¨ |
| |
|
(b) |
¨ |
| 3 |
SEC
USE ONLY |
| |
| 4 |
SOURCE
OF FUNDS* (See Instructions) |
| OO |
| 5 |
CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR
2(e) |
|
¨ |
| |
|
|
| 6 |
citizenship
or place of organization |
| Cayman
Islands |
NUMBER
OF SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH |
7 |
sole
voting power |
| |
| 8 |
shared
voting power |
| 1,859,956,236 |
| 9 |
sole
dispositive power |
| |
| 10 |
shared
dispositive power |
| 1,859,956,236 |
| 11 |
aggregate
amount beneficially owned by each reporting person |
| 1,859,956,236 |
| 12 |
check
if the aggregate amount in row (11) excludes certain shares (See INstructions)* |
|
¨ |
| |
|
|
| 13 |
percent
of class represented by amount in row (11) |
| 57.58% |
| 14 |
type
of reporting person* |
| PN |
*SEE INSTRUCTION BEFORE FILLING OUT
| CUSIP No. 91818X108 |
13D |
Page 8
of 21 |
| 1 |
NameS
of Reporting PersonS.
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
| Joy Capital III GP, L.P. |
| 2 |
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| |
|
(a) |
¨ |
| |
|
(b) |
¨ |
| 3 |
SEC
USE ONLY |
| |
| 4 |
SOURCE
OF FUNDS* (See Instructions) |
| OO |
| 5 |
CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR
2(e) |
|
¨ |
| |
|
|
| 6 |
citizenship
or place of organization |
| Cayman
Islands |
NUMBER
OF SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH |
7 |
sole
voting power |
| |
| 8 |
shared
voting power |
| 1,859,956,236 |
| 9 |
sole
dispositive power |
| |
| 10 |
shared
dispositive power |
| 1,859,956,236 |
| 11 |
aggregate
amount beneficially owned by each reporting person |
| 1,859,956,236 |
| 12 |
check
if the aggregate amount in row (11) excludes certain shares (See INstructions)* |
|
¨ |
| |
|
|
| 13 |
percent
of class represented by amount in row (11) |
| 57.58% |
| 14 |
type
of reporting person* |
| PN |
*SEE INSTRUCTION BEFORE FILLING OUT
| CUSIP No. 91818X108 |
13D |
Page 9
of 21 |
| 1 |
NameS
of Reporting PersonS.
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
| Joy Capital GP, Ltd. |
| 2 |
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| |
|
(a) |
¨ |
| |
|
(b) |
¨ |
| 3 |
SEC
USE ONLY |
| |
| 4 |
SOURCE
OF FUNDS* (See Instructions) |
| OO |
| 5 |
CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR
2(e) |
|
¨ |
| |
|
|
| 6 |
citizenship
or place of organization |
| Cayman
Islands |
NUMBER
OF SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH |
7 |
sole
voting power |
| |
| 8 |
shared
voting power |
| 1,859,956,236 |
| 9 |
sole
dispositive power |
| |
| 10 |
shared
dispositive power |
| 1,859,956,236 |
| 11 |
aggregate
amount beneficially owned by each reporting person |
| 1,859,956,236 |
| 12 |
check
if the aggregate amount in row (11) excludes certain shares (See INstructions)* |
|
¨ |
| |
|
|
| 13 |
percent
of class represented by amount in row (11) |
| 57.58% |
| 14 |
type
of reporting person* |
| OO |
*SEE INSTRUCTION BEFORE FILLING OUT
| CUSIP No. 91818X108 |
13D |
Page 10
of 21 |
| 1 |
NameS
of Reporting PersonS.
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
| Joy Capital IV, L.P. |
| 2 |
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| |
|
(a) |
¨ |
| |
|
(b) |
¨ |
| 3 |
SEC
USE ONLY |
| |
| 4 |
SOURCE
OF FUNDS* (See Instructions) |
| OO |
| 5 |
CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR
2(e) |
|
¨ |
| |
|
|
| 6 |
citizenship
or place of organization |
| Cayman
Islands |
NUMBER
OF SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH |
7 |
sole
voting power |
| |
| 8 |
shared
voting power |
| 1,859,956,236 |
| 9 |
sole
dispositive power |
| |
| 10 |
shared
dispositive power |
| 1,859,956,236 |
| 11 |
aggregate
amount beneficially owned by each reporting person |
| 1,859,956,236 |
| 12 |
check
if the aggregate amount in row (11) excludes certain shares (See INstructions)* |
|
¨ |
| |
|
|
| 13 |
percent
of class represented by amount in row (11) |
| 57.58% |
| 14 |
type
of reporting person* |
| PN |
*SEE INSTRUCTION BEFORE FILLING OUT
| CUSIP No. 91818X108 |
13D |
Page 11
of 21 |
| 1 |
NameS
of Reporting PersonS.
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
| Joy Capital IV GP, L.P. |
| 2 |
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| |
|
(a) |
¨ |
| |
|
(b) |
¨ |
| 3 |
SEC
USE ONLY |
| |
| 4 |
SOURCE
OF FUNDS* (See Instructions) |
| OO |
| 5 |
CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR
2(e) |
|
¨ |
| |
|
|
| 6 |
citizenship
or place of organization |
| Cayman
Islands |
NUMBER
OF SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH |
7 |
sole
voting power |
| |
| 8 |
shared
voting power |
| 1,859,956,236 |
| 9 |
sole
dispositive power |
| |
| 10 |
shared
dispositive power |
| 1,859,956,236 |
| 11 |
aggregate
amount beneficially owned by each reporting person |
| 1,859,956,236 |
| 12 |
check
if the aggregate amount in row (11) excludes certain shares (See INstructions)* |
|
¨ |
| |
|
|
| 13 |
percent
of class represented by amount in row (11) |
| 57.58% |
| 14 |
type
of reporting person* |
| PN |
*SEE INSTRUCTION BEFORE FILLING OUT
| CUSIP No. 91818X108 |
13D |
Page 12
of 21 |
| Item 1. | Security
and Issuer |
This Amendment No. 8
to the statement on Schedule 13D (this “Amendment”) relates to the Class A ordinary shares, par value US$0.0001
per share (the “Class A Ordinary Shares”), of Uxin Limited, a company organized under the laws of the Cayman
Islands (the “Issuer”), whose principal executive offices are located at 21/F, Donghuang Building, No. 16 Guangshun
South Avenue, Chaoyang District, Beijing 100102, People's Republic of China.
This Amendment supplements
and amends the statement on Schedule 13D, Schedule 13D Amendment No. 1, Schedule 13D Amendment No. 2, Schedule 13D Amendment
No. 3, Schedule 13D Amendment No. 4, Schedule 13D Amendment No. 5, Schedule 13D Amendment No. 6 and Amendment No. 7
filed on July 22, 2021, November 16, 2021, January 26, 2022, March 29, 2022, July 5, 2022, August 2, 2022,
January 19, 2023 and June 7, 2023 respectively (as amended, the “Initial Statements”). Capitalized terms
used in this Amendment, but not otherwise defined, have the meanings given to them in the Initial Statements.
Other than as amended by
this Amendment, the disclosures in the Initial Statements are unchanged. Responses to each item of this Amendment are incorporated by
reference into the responses to each other item, as applicable.
| Item 2. | Identity
and Background |
(a) Name of Person Filing
Item 2(a) of the Initial Statements is hereby
amended and supplemented by restating the first and second paragraph below and adding the third paragraph below to the end of the paragraph
before the last paragraph thereof:
This Schedule 13D is filed by (i) Astral
Success Limited (“Astral”); (ii) Joy Capital Opportunity, L.P. (“Joy Opportunity”); (iii) Joy
Capital Opportunity GP, L.P. (“Joy Opportunity GP”); (iv) Joy Capital II, L.P. (“Joy II”);
(v) Joy Capital II GP, L.P. (“Joy II GP”); (vi) Joy Capital III, L.P. (“Joy III”); (vii) Joy
Capital III GP, L.P. (“Joy III GP”); (viii) Joy Capital IV, L.P. (“Joy IV”), (ix) Joy
Capital IV GP, L.P. (“Joy IV GP”) and (x) Joy Capital GP, Ltd. (“Joy Capital GP”). The
foregoing entities are collectively referred to as the “Reporting Persons”.
Astral is the holder of record of the Senior
Convertible Preferred Shares acquired in the First Closing, the Second Closing and the Warrant Transaction (as defined below). Joy
Opportunity, Joy II, Joy III and Joy IV comprise the owners of the majority of the voting interest of Astral. Joy Opportunity GP,
Joy II GP, Joy III GP and Joy IV GP are the general partners respectively of Joy Opportunity, Joy II, Joy III and Joy IV. Joy
Capital GP is the general partner of Joy Opportunity GP, Joy II GP, Joy III GP and Joy IV GP. Each of the Reporting Persons is
ultimately controlled by Mr. Erhai Liu. Mr. Erhai Liu disclaims beneficial ownership of the Class A Ordinary Shares
of the Issuer held by each of the Reporting Persons, except to the extent of Mr. Erhai Liu’s pecuniary interest therein,
if any.
The consummation of the sale and purchase of
218,818,380 Senior Convertible Preferred Shares pursuant to the Warrant Agreement occurred on August 17, 2023.
(b) Address of Principal Business Office, or,
if none, Residence
| CUSIP No. 91818X108 |
13D |
Page 13
of 21 |
Item 2(b) of the Initial Statements is hereby amended and supplemented
as the following:
The address for each of Joy Opportunity, Joy Opportunity GP, Joy II,
Joy II GP, Joy III, Joy III GP, Joy IV, Joy IV GP and Joy Capital GP is:
c/o Harneys Services (Cayman) Limited
4th Floor, Harbour Place
103 South Church Street, P. O. Box 10240
Grand Cayman KY1-1002
Cayman Islands
The address for Astral is:
Craigmuir Chambers
Road Town, Tortola, VG 1110
British Virgin Islands
(c) Principal Occupation or Employment
Item 2(c) of the Initial Statements are
hereby amended and restated as the following:
Astral is a special purpose vehicle established to invest in the securities
of the Issuer. The principal business of the Joy Opportunity, Joy II, Joy III and Joy IV is to invest in securities on behalf of their
limited partners. The principal business of Joy Opportunity GP, Joy II GP, Joy III GP and Joy IV GP is to act as the general partners
of Joy Opportunity, Joy II, and Joy III and Joy IV. The principal business of Joy Capital GP is to act as the general partner of Joy
Opportunity GP, Joy II GP, Joy III GP and Joy IV GP.
(f) Citizenship
Item 2(f) of the Initial Statements are
hereby amended and restated as the following:
Astral Success Limited is a company limited by shares incorporated
under the laws of the British Virgin Islands with its registered office at Craigmuir Chambers, Road Town, Tortola, VG 1110, British Virgin
Islands. The remaining Reporting Persons are limited partnerships or corporation organized under the laws of the Cayman Island. Mr. Erhai
Liu is a citizen of the People’s Republic of China.
| Item 3. | Source
and Amount of Funds or Other Consideration |
Item 3 of the Initial Statements is hereby amended
and supplemented by adding the following paragraph to the end:
The net investment cost of exercising the Warrant
to purchase the Senior Convertible Preferred Shares of the Issuer by Astral was US$10,000,000. The funds used to acquire the Issuer’s
securities were from the investment capital contributed to Astral by Joy IV.
| CUSIP No. 91818X108 |
13D |
Page 14
of 21 |
| Item 4. | Purpose of Transaction |
Item 4 of the Initial Statements is hereby amended
and supplemented by adding the following before the last paragraph thereof:
On August 17, 2023, the Issuer issued 218,818,380
Senior Convertible Preferred Shares to Astral at US$0.0457 (equivalent to US$1.37 per ADS) pursuant to the Warrant Agreement dated June 30,
2023 (the “Warrant Transaction”). The Warrant Transaction constitutes a Dilutive Issuance under the Second Amended
and Restated Certificate of Designation of the Issuer dated August 17, 2023 (the “Second Amended Certificate of Designation”)
in view of the lower issuance price of the Senior Convertible Preferred Shares than that of the Senior Convertible Preferred Shares issued
pursuant to the Subscription Agreement. Therefore, the conversion price of each Senior Convertible Preferred Share outstanding immediately
prior to the consummation of the Warrant Transaction held by Astral and any other investors (including all Senior Convertible Preferred
Shares issued to Astral and any other investors pursuant to the Subscription Agreement and in the 2022 Transaction) was reduced and adjusted
to US$0.0457 per share with effect from August 17, 2023 by operation of and in accordance with the anti-dilution clause specified
in the Second Amended Certificate of Designation (the “Anti-dilution Adjustment”).
| Item 5. | Interest
in Securities of the Issuer |
Item 5 (a-b) of the Initial Statements is hereby
amended and restated with the following:
(a-b) The
information in the cover pages of this Schedule 13D is incorporated by reference. The calculation of percentage ownership of the
outstanding Class A Ordinary Shares is made pursuant to the requirements of Rule 13d-3(d)(1)(i) under the Exchange Act,
which requires the assumption that Astral, but only Astral, has converted its Senior Convertible Preferred Shares and assumes that there
is currently a total of 1,370,143,934 Class A Ordinary Shares outstanding (excluding 1,383,862 Class A Ordinary Shares issued
to the Issuer’s depositary bank for bulk issuance of ADSs reserved for future issuances upon the exercise or vesting of awards
granted under the Issuer’s share incentive plan).
The Reporting Persons’ beneficial ownership
of the Class A Ordinary Shares reported as beneficially owned herein includes (i) 1,641,137,856 Class A Ordinary Shares
that may be acquired upon conversion of 218,467,812 Senior Convertible Preferred Shares held of record by Astral and acquired pursuant
to the Subscription Agreement at a conversion price of US$0.0457 per share reflecting the Anti-dilution Adjustment, and (ii) 218,818,380
Class A Ordinary Shares that may be acquired upon conversion of 218,818,380 Senior Convertible Preferred Shares acquired by Astral
on August 17, 2023.
| Item 6. | Contracts, Arrangements, Understandings or Relationships
with Respect to Securities of the Issuer |
Item 6 of the Initial Statements is hereby amended
and supplemented by adding the following paragraphs to the end:
Amended and Restated Voting Agreement
On August 17, 2023, the Issuer, Astral and
certain other parties entered into an Amended and Restated Voting Agreement (the “Amended Voting Agreement”) which
replaced and superseded the Voting Agreement dated July 12, 2021 and the Voting Agreement dated July 27, 2022. Pursuant to
the Amended Voting Agreement, the board of directors of the Issuer (the “Board”) shall consist of six directors or
such other number of directors as approved by the Board (including the affirmative consent of the directors nominated by Astral and NIO
Capital), among which, subject to certain limitations set forth in the Amended Voting Agreement, Astral shall be entitled to nominate
one director, Astral and NIO Capital shall be collectively entitled to nominate two independent directors and Mr. Kun Dai or the
Board shall be entitled to appoint the third independent director. Each party to the Amended Voting Agreement (other than the Issuer)
has agreed that they shall vote the equity securities of the Issuer held by them at any general meeting of shareholders and take all
other necessary actions, and cause their nominated directors to vote at any meeting of the Board and take all other necessary actions,
in each case, in order to ensure the Board composition set forth above.
| CUSIP No. 91818X108 |
13D |
Page 15
of 21 |
In addition, subject to certain exceptions, neither
Mr. Kun Dai nor Xin Gao Group Limited (“Xin Gao”) may, on or before June 30, 2026, transfer, or publicly
announce an intention to transfer, any equity securities in the Issuer held by Mr. Kun Dai, Xin Gao or their respective permitted
transferees as of the date thereof, without the prior written consent of Astral and other investors.
Because of the arrangements in the Amended Voting
Agreement, the parties to that agreement (excluding the Issuer) may be deemed to have formed a “group” for purposes of Section 13(d)(3) of
the Exchange Act. The Reporting Persons disclaim beneficial ownership of any shares of the Issuer beneficially owned by any other person,
and the Schedule 13D shall not be construed as acknowledging that the Reporting Persons for any or all purposes, beneficially own any
shares of the Issuer beneficially owned by any other person. The aggregate beneficial ownership of the Reporting persons and the NIO
Capital is 5,579,868,708 Class A Ordinary Shares. NIO Capital has separately reported its beneficial ownership on a Schedule 13D
filed on August 23, 2023.
Registration Rights Agreement
On August 17, 2023, the Issuer and Astral
entered into a Registration Rights Agreement with respect to the Class A Ordinary Shares and ADRs issuable to Astral upon conversion
of its Senior Convertible Preferred Shares. The Registration Rights Agreement grants Astral customary shelf and piggyback registration
rights.
| Item 7. | Material
to Be Filed as Exhibits |
| CUSIP No. 91818X108 |
13D |
Page 16
of 21 |
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: August 23, 2023
| |
Joy Capital Opportunity, L.P. |
| |
|
| |
By: Joy Capital Opportunity GP, L.P. |
| |
Its: general partner |
| |
|
| |
By: Joy Capital GP, Ltd. |
| |
Its: general partner |
| |
|
| |
By: |
/s/ Erhai Liu |
| |
|
Erhai Liu, Director |
| |
|
| |
Joy Capital Opportunity GP, L.P. |
| |
|
| |
By: Joy Capital GP, Ltd. |
| |
Its: general partner |
| |
|
| |
By: |
/s/ Erhai Liu |
| |
|
Erhai Liu, Director |
| |
Joy Capital II, L.P. |
| |
|
| |
By: Joy Capital II GP, L.P. |
| |
Its: general partner |
| |
|
| |
By: Joy Capital GP, Ltd. |
| |
Its: general partner |
| |
|
| |
By: |
/s/ Erhai Liu |
| |
|
Erhai Liu, Director |
| |
|
| |
Joy Capital II GP, L.P. |
| |
|
| |
By: Joy Capital GP, Ltd. |
| |
Its: general partner |
| |
|
| |
By: |
/s/ Erhai Liu |
| |
|
Erhai Liu, Director |
| CUSIP No. 91818X108 |
13D |
Page 17
of 21 |
| |
Joy Capital III, L.P. |
| |
|
| |
By: Joy Capital III GP, L.P. |
| |
Its: general partner |
| |
|
| |
By: Joy Capital GP, Ltd. |
| |
Its: general partner |
| |
|
| |
By: |
/s/ Erhai Liu |
| |
|
Erhai Liu, Director |
| |
|
| |
Joy Capital III GP, L.P. |
| |
|
| |
By: Joy Capital GP, Ltd. |
| |
Its: general partner |
| |
|
| |
By: |
/s/ Erhai Liu |
| |
|
Erhai Liu, Director |
| |
Joy Capital GP, Ltd. |
| |
|
| |
By: |
/s/ Erhai Liu |
| |
|
Erhai Liu, Director |
| |
|
| |
Astral Success Limited |
| |
|
| |
By: |
/s/ Erhai Liu |
| |
|
Erhai Liu, Director |
| |
|
| |
Joy Capital IV, L.P. |
| |
|
| |
By: Joy Capital IV GP, L.P. |
| |
Its: general partner |
| |
|
| |
By: Joy Capital GP, Ltd. |
| |
Its: general partner |
| |
|
| |
By: |
/s/ Erhai Liu |
| |
|
Erhai Liu, Director |
| CUSIP No. 91818X108 |
13D |
Page 18
of 21 |
| |
Joy Capital IV GP, L.P. |
| |
|
| |
By: Joy Capital GP, Ltd. |
| |
Its: general partner |
| |
|
| |
By: |
/s/ Erhai Liu |
| |
|
Erhai Liu, Director |
Attention: Intentional misstatements or omissions
of fact constitute Federal criminal violations
(See 18 U.S.C. 1001)
EXHIBIT 1
| CUSIP No. 91818X108 |
13D |
Page 19
of 21 |
JOINT FILING AGREEMENT
UXIN LIMITED
In accordance with Rule 13d-1(k) under the Securities Exchange
Act of 1934, as amended, the undersigned hereby confirm the agreement by and among them to the joint filing on behalf of them of the Statement
on Schedule 13D and any and all further amendments thereto, with respect to the securities of the above referenced issuer, and that this
Agreement be included as an Exhibit to such filing. This Agreement may be executed in any number of counterparts each of which shall
be deemed to be an original and all of which together shall be deemed to constitute one and the same Agreement.
IN WITNESS WHEREOF, the undersigned hereby execute this Agreement as
of August 23, 2023.
| |
Joy Capital Opportunity, L.P. |
| |
|
| |
By: Joy Capital Opportunity GP, L.P. |
| |
Its: general partner |
| |
|
| |
By: Joy Capital GP, Ltd. |
| |
Its: general partner |
| |
|
| |
By: |
/s/ Erhai Liu |
| |
|
Erhai Liu, Director |
| |
|
| |
Joy Capital Opportunity GP, L.P. |
| |
|
| |
By: Joy Capital GP, Ltd. |
| |
Its: general partner |
| |
|
| |
By: |
/s/ Erhai Liu |
| |
|
Erhai Liu, Director |
| CUSIP No. 91818X108 |
13D |
Page 20
of 21 |
| |
Joy Capital II, L.P. |
| |
|
| |
By: Joy Capital II GP, L.P. |
| |
Its: general partner |
| |
|
| |
By: Joy Capital GP, Ltd. |
| |
Its: general partner |
| |
|
| |
By: |
/s/ Erhai Liu |
| |
|
Erhai Liu, Director |
| |
|
| |
Joy Capital II GP, L.P. |
| |
|
| |
By: Joy Capital GP, Ltd. |
| |
Its: general partner |
| |
|
| |
By: |
/s/ Erhai Liu |
| |
|
Erhai Liu, Director |
| |
|
| |
Joy Capital III, L.P. |
| |
|
| |
By: Joy Capital III GP, L.P. |
| |
Its: general partner |
| |
|
| |
By: Joy Capital GP, Ltd. |
| |
Its: general partner |
| |
|
| |
By: |
/s/ Erhai Liu |
| |
|
Erhai Liu, Director |
| |
|
| |
Joy Capital III GP, L.P. |
| |
|
| |
By: Joy Capital GP, Ltd. |
| |
Its: general partner |
| |
|
| |
By: |
/s/ Erhai Liu |
| |
|
Erhai Liu, Director |
| CUSIP No. 91818X108 |
13D |
Page 21
of 21 |
| |
Joy Capital GP, Ltd. |
| |
|
| |
By: |
/s/ Erhai Liu |
| |
|
Erhai Liu, Director |
| |
|
| |
Astral Success Limited |
| |
|
| |
By: |
/s/ Erhai Liu |
| |
|
Erhai Liu, Director |
| |
|
| |
Joy Capital IV, L.P. |
| |
|
| |
By: Joy Capital IV GP, L.P. |
| |
Its: general partner |
| |
|
| |
By: Joy Capital GP, Ltd. |
| |
Its: general partner |
| |
|
| |
By: |
/s/ Erhai Liu |
| |
|
Erhai Liu, Director |
| |
|
| |
Joy Capital IV GP, L.P. |
| |
|
| |
By: Joy Capital GP, Ltd. |
| |
Its: general partner |
| |
|
| |
By: |
/s/ Erhai Liu |
| |
|
Erhai Liu, Director |
EXHIBIT 2
Execution Version
SPECIFIC TERMS IN THIS EXHIBIT HAVE BEEN
REDACTED BECAUSE THEY ARE BOTH (I) NOT MATERIAL AND (II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED. THE REDACTED
TERMS HAVE BEEN MARKED AT THE APPROPRIATE PLACE WITH THREE ASTERISKS [***].
AMENDED AND RESTATED VOTING AGREEMENT
by and among
UXIN LIMITED
MR. KUN DAI
XIN GAO GROUP LIMITED
ASTRAL SUCCESS LIMITED
ABUNDANT GRACE INVESTMENT LIMITED
and
ABUNDANT GLORY INVESTMENT L.P.
Dated August 17, 2023
TABLE OF CONTENTS
Page
| Article I DEFINITIONS and interpretation |
2 |
| Section 1.01 Definitions |
2 |
| Section 1.02 Interpretation |
6 |
| Article II Corporate Governance |
7 |
| Section 2.01 Board of
Director |
7 |
| Section 2.02 Removal
and Replacement of Directors |
9 |
| Section 2.03 Investor
Agreements |
10 |
| Section 2.04 Board Approval
Matters |
10 |
| Article III PRINCIPAL LOCK-UP |
10 |
| Section 3.01 Principal
Lock-up |
10 |
| Section 3.02 Permitted
Transfers |
10 |
| Article IV ConfidentialitY |
11 |
| Section 4.01 General
Obligations |
11 |
| Section 4.02 Exceptions |
11 |
| Section 4.03 Press Release |
12 |
| Section 4.04 Overriding
Provision |
12 |
| Article V Representation and Warranties |
12 |
| Section 5.01 Existence |
12 |
| Section 5.02 Capacity |
12 |
| Section 5.03 Authorization
And Enforceability |
12 |
| Section 5.04 Non-Contravention |
12 |
| Article VI termination |
13 |
| Section 6.01 General |
13 |
| Section 6.02 Termination
with Respect to a Shareholder |
13 |
| Section 6.03 Survival |
13 |
| Article VII Miscellaneous |
14 |
| Section 7.01 Notices |
14 |
| Section 7.02 Further
Assurances |
14 |
| Section 7.03 Assignments
and Transfers |
14 |
| Section 7.04 Rights Cumulative;
Specific Performance |
15 |
| Section 7.05 Amendment |
15 |
| Section 7.06 Waiver |
15 |
| Section 7.07 No Presumption |
15 |
| Section 7.08 Severability |
15 |
| Section 7.09 Entire Agreement |
15 |
| Section 7.10 Counterparts |
16 |
| Section 7.11 Descriptive
Headings; Construction |
16 |
| Section 7.12 Control |
16 |
| Section 7.13 Adjustments
for Share Splits, Etc. |
16 |
| Section 7.14 Use of English
Language |
16 |
| Section 7.15 Governing
Law |
16 |
| Section 7.16 Dispute
Resolution |
16 |
| Section 7.17 Deed of
Adherence |
17 |
SCHEDULES
| SCHEDULE A | |
Board Approval Matters |
| | |
|
| SCHEDULE B | |
Adverse Persons |
| | |
|
| SCHEDULE C | |
Deed of Adherence |
AMENDED AND RESTATED VOTING AGREEMENT
THIS AMENDED AND RESTATED
VOTING AGREEMENT (this “Agreement”) is entered into on August 17, 2023 by and among:
| 1. | Uxin Limited, an exempted company organized
under the Laws of the Cayman Islands (the “Company”), |
| 2. | Mr. Kun
Dai (戴琨) (PRC identity card no. 610104198204066214) (the “Principal”), |
| 3. | Xin Gao Group Limited, a company organized
under the Laws of the British Virgin Islands (the “Principal Holding Company”,
collectively with the Principal, the “Principal Parties”, and each a “Principal
Party”), |
| 4. | Astral Success Limited, a company limited by
shares incorporated under the Laws of the British Virgin Islands (together with its successors,
assignees and transferees, “Joy Capital”), |
| 5. | Abundant Grace Investment Limited, a company
limited by shares incorporated under the Laws of British Virgin Islands (together with its
successors, assignees and transferees, “NIO Grace”), |
| 6 | Abundant
Glory Investment L.P., a limited partnership formed under the Laws of British Virgin Islands
(together with its successors, assignees and transferees, “NIO Glory”,
together with NIO Grace, “NIO Capital”; NIO Capital and Joy Capital, collectively,
the “Investors” and each an “Investor”). |
Each of the parties to this
Agreement is referred to herein individually as a “Party” and collectively as the “Parties”.
RECITALS
| A | The Company, Joy Capital and NIO Grace entered
into a Share Subscription Agreement dated June 14, 2021 (as supplemented and amended
from time to time, the “2021 Subscription Agreement”). |
| B | In connection with the 2021 Subscription Agreement,
the Company, Joy Capital, NIO Grace, the Principal Parties, Redrock Holding Investments Limited,
TPG Growth III SF Pte. Ltd. and 58.com Holdings Inc. (collectively, the “Major Noteholders”
and each a “Major Noteholder”) entered into a Voting Agreement dated July 12,
2021 (the “2021 Voting Agreement”), pursuant to which, a Major Noteholder
shall automatically cease to be a party to the 2021 Voting Agreement and shall have no further
rights or obligations thereunder upon such Major Noteholder ceasing to hold its 2019 Note
(as such term is defined in the 2021 Subscription Agreement). As of the date hereof, none
of the Major Noteholders holds its 2019 Note, therefore all the Major Noteholders have ceased
to be parties to the 2021 Voting Agreement and have no further rights and obligations thereunder. |
| C | The Company and NIO Grace entered into a Share
Subscription Agreement dated June 30, 2022 (as may be supplemented and amended from
time to time, the “2022 Subscription Agreement”). |
| D | In connection with the 2022 Subscription Agreement,
the Company, Joy Capital, NIO Grace, NIO Glory and the Principal Parties entered into a Voting
Agreement dated July 27, 2022 (as may be supplemented and amended from time to time,
the “2022 Voting Agreement”). |
| E | The Company, Joy Capital and Alpha Wealth Global
Limited entered into an Agreement in Relation to Amendment to and Exercise of Warrants Issued
by Uxin Limited dated June 30, 2023 (as may be supplemented and amended from time to
time, the “Warrant Agreement”). |
| F | The Warrant Agreement provides that the execution
and delivery of this Agreement shall be a condition precedent to the consummation of the
transactions contemplated under the Warrant Agreement. |
| G | The
Parties desire to enter into this Agreement to supersede and replace the 2021 Voting
Agreement and the 2022 Voting Agreement in their entirety to regulate their relationship
with each other and certain aspects of the affairs, and their dealings, with the Company. |
WITNESSETH
NOW, THEREFORE, in consideration
of the foregoing recitals, the mutual promises hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Parties intending to be legally bound hereto hereby agree as follows:
Article I
DEFINITIONS and interpretation
Section 1.01 Definitions.
Unless the context otherwise requires, the following terms shall have the meanings ascribed to them below:
“ADSs”
means the American Depositary Shares of the Company, each representing thirty (30) Class A Ordinary Shares.
“Adverse Person”
means any Person identified in SCHEDULE B hereto, any additional Persons to be mutually agreed in writing by the Company and the Investors
from time to time, and any controlled Affiliates of any of the foregoing.
“Affiliate”
has the meaning given to such term in the 2022 Subscription Agreement.
“Agreement”
has the meaning assigned to such term in the preamble.
“Annual Budget”
means an annual budget in respect of a fiscal year of the Group, setting forth, among other things, the projected balance sheets, income
statements and statements of cash flows for such period; the projected budget for operation of each major business segment; any dividend
or distribution to be declared or paid; the projected incurrence, assumption or refinancing of indebtedness; projected revenue and profit
during such period; any proposed merger, consolidation, reorganization, or amalgamation of any Group Member with or into any other Person,
or any scheme of arrangement or other business combination with or into any other Person; and payments projected to be made not in the
ordinary course of business of the Group.
“Applicable Laws”,
“Law” or “Laws” means, with respect to any Person, any transnational, domestic or foreign federal,
national, state, provincial, local or municipal law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code,
rule, regulation, executive order, injunction, judgment, decree, ruling or other similar requirement enacted, adopted, promulgated or
applied by a Governmental Entity that is binding upon or applicable to such Person or any of such Person’s assets, rights or properties.
“Beneficial Owner”
has the meaning given such term in Rule 13d-3 under the Exchange Act, provided that Beneficial Ownership under Rule 13d-3(1)(i) shall
be determined based on whether a Person has a right to acquire Beneficial Ownership irrespective of whether such right is exercisable
within 60 days of the time of determination, and “Beneficially Own”, “Beneficially Owned” and “Beneficial
Ownership” have meanings correlative to that of Beneficial Owner.
“Board”
means the board of directors of the Company.
“Certificate of
Designation” means the Second Amended and Restated Certificate of Designation of Senior Convertible Preferred Shares dated
as of the date hereof approved and adopted by the Board, as may be supplemented, amended or restated from time to time.
“Charter Documents”
means, with respect to any Person that is not a natural person, such Person’s articles of incorporation, certificate of incorporation,
by-laws, memorandum of associations, articles of association and other similar organizational documents. Unless the context otherwise
requires, any reference to “Charter Documents” refers to the Charter Documents of the Company.
“Class A Ordinary
Shares” means the Company’s Class A ordinary shares, par value $0.0001 per share.
“Class B Ordinary
Shares” means the Company’s Class B ordinary shares, par value $0.0001 per share.
“Company”
has the meaning assigned to such term in the preamble.
“Confidential Information”
has the meaning assigned to such term in Section 4.01.
“Control”
of a given Person means the power or authority, whether exercised or not, to direct the business, management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; provided, that such power or authority
shall conclusively be presumed to exist upon possession of Beneficial Ownership or power to direct the vote of more than fifty percent
(50%) of the votes entitled to be cast at a meeting of the members or shareholders of such Person or power to control the composition
of a majority of the board of directors of such Person. The terms “Controlled” and “Controlling”
have meanings correlative to the foregoing.
“Conversion Shares”
means Class A Ordinary Shares issued or issuable upon conversion of the Senior Preferred Shares.
“Director”
means a director serving on the Board.
“Equity Securities”
means, with respect to any Person that is a legal entity, any and all shares of capital stock, membership interests, units, depositary
shares, profits interests, ownership interests, equity interests, registered capital, and other equity securities or ownership interests
of such Person, and any right, warrant, option, call, commitment, conversion privilege, preemptive right or other right to acquire any
of the foregoing, or security convertible into, exchangeable or exercisable for any of the foregoing. Unless the context otherwise requires,
any reference to “Equity Securities” refers to the Equity Securities of the Company.
“Encumbrance”
means any mortgage, lien, pledge, charge, security interest, title defect, right of first refusal, claim, easement, right-of-way, option,
preemptive or similar right or other restriction of any kind or nature.
“Existing Share
Incentive Scheme” means the Company’s 2018 Second Amended and Restated Share Incentive Plan.
“Exchange Act”
means the U.S. Securities Exchange Act of 1934, as amended, and any rules and regulations promulgated thereunder.
“Governmental Entity”
means any transnational or supranational, domestic or foreign federal, national, state, provincial, local or municipal governmental,
regulatory, judicial or administrative authority, department, court, arbitral body, agency or official, including any department, commission,
board, agency, bureau, subdivision or instrumentality thereof.
“Group”
means the Company and its direct and indirect Subsidiaries, and “Group Member” means any of them.
“Hong Kong”
means the Hong Kong Special Administrative Region of the People’s Republic of China.
“HKIAC”
has the meaning assigned to such term in Section 7.16(i).
“Investor”
has the meaning assigned to such term in the preamble.
“Investor Director”
has the meaning assigned to such term in Section 2.01(i)(b).
“Investors’
Rights Agreement” means the Amended and Restated Investors’ Rights Agreement entered into by and among the Company, the
Principal Parties and Investors dated July 27, 2022, as may be supplemented, amended or restated from time to time.
“Joy Capital”
has the meaning assigned to such term in the preamble.
“Joy Director”
has the meaning assigned to such term in Section 2.01(i)(a).
“Major Noteholder”
has the meaning assigned to such term in the recitals.
“Memorandum and
Articles” means the amended and restated memorandum and articles of association of the Company currently in effect, as may
be amended or restated from time to time.
“NASDAQ”
means the NASDAQ Global Select Market.
“New Securities”
means any Equity Securities issued and allotted by the Company on or after the date of this Agreement. “New Securities”
shall not include, the following allotments and issuances of Equity Securities: (i) options, grants, awards, restricted shares or
any other Ordinary Shares or Ordinary Share Equivalents issued under the Existing Share Incentive Scheme or any other employee share
incentive scheme(s) approved pursuant to Section 2.04 (collectively, “Company Options”), and Equity Securities
upon the exercise or conversion of any Company Options; (ii) Ordinary Shares issued upon the termination of the Company’s
American Depositary Receipts program or the termination, cancelation or exchange of any ADSs by the holders thereof; (iii) Conversion
Shares issued upon conversion of Senior Preferred Shares; (iv) Equity Securities of the Company issued in connection with any share
split, share dividend, reclassification or other similar event that has been approved in accordance with Section 2.04; and other
than to the extent covered above in (i) and (ii), Ordinary Shares or ADSs issued upon the conversion or exercise of any Ordinary
Share Equivalents outstanding as of the date of this Agreement or issued subsequent to the date of this Agreement in compliance with
the participation rights (in each case, pursuant to the terms of the relevant Ordinary Share Equivalents as unmodified).
“NIO Competitor”
means [***].
“NIO Director”
has the meaning assigned to such term in Section 2.01(i)(b).
“NIO Grace”,
“NIO Glory” or “NIO Capital” has the meaning assigned to such term in the preamble.
“Ordinary Share
Equivalents” means (a) any rights, options or warrants to acquire Ordinary Shares and (b) any depositary shares (including,
without limitation, the ADSs), notes, debentures, preference shares or other Equity Securities or rights, which are ultimately convertible
or exercisable into, or exchangeable for, Ordinary Shares.
“Ordinary Shares”
means Class A Ordinary Shares and Class B Ordinary Shares.
“Party”
has the meaning assigned to such term in the preamble.
“Permitted Transferee”
has the meaning assigned to such term in Section 3.02(ii).
“Person”
means an individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including
a Governmental Entity.
“PRC”
means the People’s Republic of China.
“Principal”
has the meaning assigned to such term in the preamble.
“Principal Holding
Company” has the meaning assigned to such term in the preamble.
“Principal Lock-up
Period” means the period commencing on July 12, 2021 and continuing until June 30, 2026.
“Principal Party”
has the meaning assigned to such term in the preamble.
“Quarter Budget”
means a budget in respect of a quarter of the Group, setting forth, among other things, the projected budget for operation of each major
business segment and payments projected to be made in connection thereto, including without limitation transactions set forth in paragraphs
14 to 18 of SCHEDULE A hereto.
“Replacement Director”
has the meaning assigned to such term in Section 2.02(ii).
“Representatives”
means, with respect to any Person, the directors, officers, legal representatives, employees, counsel, accountants, agents, consultants,
advisors and other representatives of such Person and its Subsidiaries and any other Person acting on behalf of the foregoing.
“Related Party”
means (i) any shareholder of the Company or any Subsidiary, (ii) any director of the Company or any Subsidiary, (iii) any
officer of the Company or any Subsidiary, (iv) any employee of the Company or any Subsidiary, (v) any Relative of a shareholder,
director, officer or employee of the Company or any Subsidiary, (vi) any Person in which any shareholder or any director or officer
of the Company or any Subsidiary has any interest, other than a passive shareholding of less than 5% in a publicly listed company, and
(vii) any other Affiliate of the Company or any Subsidiary.
“Relative”
of a natural person means the spouse of such person and any parent, grandparent, child, grandchild, sibling, cousin, in-law, uncle, aunt,
nephew or niece of such person or spouse.
“Senior Preferred
Shares” means the senior convertible preferred shares of the Company with such preference, priority, special privilege and
other rights provided in the Certificate of Designation.
“Shares”
means Ordinary Shares and Senior Preferred Shares.
“Shareholders”
means the shareholders of the Company.
“Subsidiary”
means any entity of which a majority of the outstanding equity securities or other ownership interests representing a majority of the
outstanding equity interests or otherwise having ordinary voting power to elect a majority of the board of directors or other Persons
performing similar functions are at the time directly or indirectly owned or Controlled by the Company, and includes any entity which
is directly or indirectly Controlled by the Company (including, for the avoidance of doubt, any variable interest entities that are consolidated
into the financial statements of the Company).
“Transaction Documents”
has the meaning assigned to such term in the Warrant Agreement.
“Transfer”
(or any correlative term) means, in respect of any Equity Securities, a direct or indirect sale, assignment, pledge, charge, mortgage,
hypothecation, gift, placement in trust (voting or otherwise) or transfer by operation of Law of such Equity Securities (including through
the Transfer of shares or ownership interest in any Person that directly or indirectly Controls any Person that holds such Equity Securities),
or the creation of a security interest in, or lien on, or any other Encumbrance or disposal (directly or indirectly and whether or not
voluntary) on such Equity Securities, and shall include any transfer by will or intestate succession or entry into any swap or other
derivatives transaction that transfers to any Person, in whole or in part, any of the economic benefits or risks of ownership of such
Equity Securities, whether any such transaction is to be settled by delivery of such Equity Securities or other Equity Securities, in
cash or otherwise.
“U.S.”
means the United States of America.
“U.S. GAAP”
means the generally accepted accounting principles as applied in the United States.
“Warrant”
means the warrant to purchase certain Senior Preferred Shares delivered to Joy Capital dated July 12, 2021, as amended, extended
or modified from time to time, including by the Warrant Agreement.
“Warrant Agreement”
has the meaning assigned to such term in the recitals.
“2021 Subscription
Agreement” has the meaning assigned to such term in the recitals.
“2022 Subscription
Agreement” has the meaning assigned to such term in the recitals.
“2021 Transaction
Documents” means the “Transaction Documents” set forth in the 2021 Subscription Agreement, provided that, to the
extent any 2021 Transaction Document is supplemented, amended or restated, it shall be referred to such 2021 Transaction Document as
supplemented, amended or restated.
“2022 Transaction
Documents” means the “Transaction Documents” set forth in the 2022 Subscription Agreement, provided that, to the
extent any 2022 Transaction Document is supplemented, amended or restated, it shall be referred to such 2022 Transaction Document as
supplemented, amended or restated.
“2021 Voting Agreement”
has the meaning assigned to such term in the recitals.
“2022 Voting Agreement”
has the meaning assigned to such term in the recitals.
Section 1.02 Interpretation.
For all purposes of this Agreement, except as otherwise expressly herein provided, (i) the terms defined in this Article I
shall have the meanings assigned to them in this Article I and include the plural as well as the singular, (ii) all accounting
terms not otherwise defined herein have the meanings assigned under U.S. GAAP, (iii) all references in this Agreement to designated
“Sections” and other subdivisions are to the designated Sections and other subdivisions of the body of this Agreement, (iv) pronouns
of either gender or neuter shall include, as appropriate, the other pronoun forms, (v) the words “herein,” “hereof”
and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section or
other subdivision, (vi) references to this Agreement and any other document shall be construed as references to such document as
the same may be amended, supplemented or novated from time to time, (vii) the term “including” will be deemed to be
followed by “, but not limited to,” (viii) the terms “shall,” “will,” and “agrees”
are mandatory, and the term “may” is permissive, (ix) the phrase “directly or indirectly” means directly,
or indirectly through one or more intermediate Persons or through contractual or other arrangements, and “direct or indirect”
has the correlative meaning, (x) the term “voting power” refers to the number of votes attributable to the Ordinary
Shares in accordance with the terms of the Memorandum and Articles, (xi) the headings used in this Agreement are used for convenience
only and are not to be considered in construing or interpreting this Agreement, (xii) references to Laws include any such Law modifying,
re-enacting, extending or made pursuant to the same or which is modified, re-enacted, or extended by the same or pursuant to which the
same is made, and (xiii) all references to dollars or to “$” are to currency of the United States of America and all
references to RMB are to currency of the PRC (and each shall be deemed to include reference to the equivalent amount in other currencies).
Article II
Corporate Governance.
Section 2.01 Board
of Director.
(i) The
Board shall consist of six (6) Directors or such other number of Directors as approved by the Board (including the affirmative consent
of Investor Directors), including the following:
(a) one
(1) Director nominated by Joy Capital and/or any of its Affiliate who holds any Share in the Company (the “Joy Director”),
as long as Joy Capital and/or its Affiliates hold no less than 72,822,604 Senior Preferred Shares (subject to appropriate adjustment
for share splits, share dividends, combinations and other recapitalizations, including the Senior Preferred Shares it acquired pursuant
to the 2021 Subscription Agreement and/or upon the exercise of the Warrant, and any Class A Ordinary Shares and/or ADSs (taking
into account the ratio between Ordinary Share and ADS) converted from such Senior Preferred Shares);
(b) one
(1) Director nominated by NIO Capital and/or any of its Affiliate who holds any Share in the Company (the “NIO Director”,
collectively with the Joy Director, the “Investor Directors” and each an “Investor Director”),
as long as NIO Capital and its Affiliates hold no less than 72,822,604 Senior Preferred Shares (subject to appropriate adjustment for
share splits, share dividends, combinations and other recapitalizations, including the Senior Preferred Shares it acquired pursuant to
the 2021 Subscription Agreement and/or the 2022 Subscription Agreement, and any Class A Ordinary Shares and/or ADSs (taking into
account the ratio between Ordinary Share and ADS) converted from such Senior Preferred Shares);
(c) one
(1) Director nominated by the Principal, who shall be the chairman of the Board, as long as the Principal beneficially owns no less
than 40,809,861 Class B Ordinary Shares of the Company;
(d) two
(2) independent Directors jointly nominated by the Investors, who shall both (x) meet the independence requirements of NASDAQ
and (y) not be Affiliated with, or employed by, any Adverse Person; and
(e) one
(1) independent Director nominated (x) by the Principal for so long as the Principal beneficially owns no less than 40,809,861
Class B Ordinary Shares of the Company, or (y) by the Board, if the Principal beneficially owns less than 40,809,861 Class B
Ordinary Shares of the Company, who shall, in each case, (A) meet the independence requirements of NASDAQ and (B) not be Affiliated
with, or employed by, any Adverse Person,
provided
that, for the avoidance of doubt, (1) if the number of Senior Preferred Shares (including the Senior Preferred Shares
it acquired pursuant to the 2021 Subscription Agreement and/or upon the exercise of the Warrant, and any Class A Ordinary Shares
and/or ADSs (taking into account the ratio between Ordinary Share and ADS) converted from such Senior Preferred Shares) beneficially
owned by Joy Capital and its Affiliates is less than 72,822,604 Senior Preferred Shares (subject to appropriate adjustment for share
splits, share dividends, combinations and other recapitalizations), Joy Capital and/or its Affiliates shall immediately cease to have
the right to nominate one (1) Director pursuant to Section 2.01(i)(a), (2) if the number of Senior Preferred Shares (including
the Senior Preferred Shares it acquired pursuant to the 2021 Subscription Agreement and/or the 2022 Subscription Agreement, and any Class A
Ordinary Shares and/or ADSs (taking into account the ratio between Ordinary Share and ADS) converted from such Senior Preferred Shares)
beneficially owned by NIO Capital and its Affiliates is less than 72,822,604 Senior Preferred Shares (subject to appropriate adjustment
for share splits, share dividends, combinations and other recapitalizations), NIO Capital and/or its Affiliates shall immediately cease
to have the right to nominate one (1) Director pursuant to Section 2.01(i)(b), (3) if the Principal beneficially owns
less than 40,809,861 Class B Ordinary Shares of the Company, the Principal shall immediately cease to have the right to nominate
one (1) Director pursuant to Section 2.01(i)(c), and (4) if the Principal beneficially owns less than 40,809,861 Class B
Ordinary Shares of the Company, the Principal shall immediately cease to have the right to nominate one (1) independent Director
pursuant to Section 2.01(i)(e), and in the case of each of (3) and (4), the Principal shall cause such Director nominated by
him to immediately resign from the Board, and if applicable, the board of directors of each Subsidiary of the Company.
(ii) Each
of the Parties other than the Company agrees that (a) he or it shall, to the extent in compliance with Applicable Laws, cause the
Director(s) nominated by him or it to vote at any meeting of the Board or execute any written resolution or consent of Directors
and take all other necessary actions in order to ensure that the composition of the Board is as set forth in this Section 2.01;
and (b) it shall vote (and, in the case of any Principal Party, cause any Affiliate Controlled by such Principal Party to vote)
all of his or its Equity Securities of the Company at any general meeting of Shareholders or execute any written resolution or consent
of Shareholders or proxy and take all other necessary actions, in order to ensure that the composition of the Board is as set forth in
this Section 2.01. The Company further agrees to take any and all necessary actions within its control in order to ensure that the
composition of the Board is as set forth in this Section 2.01.
(iii) The
Parties further ackolwlege that, for the avoidance of doubt, (a) the Senior Preferred Shares issued pursuant to the 2021 Subscription
Agreement and upon exercise of the Warrant and the Senior Preferred Shares issued pursuant to the 2022 Subscription Agreement are of
the same series and class of senior convertible preferred share of the Company, having the preference, priority, special privilege and
other rights provided in the Certificate of Designation, and (b) accordingly, all Senior Preferred Shares held or acquired by any
Investor and/or its Affiliates shall be aggregated together for the purpose of determining the availability of any rights of such Investor
and/or its Affiliates under this Agreement (including without limitation the right to nominate the Investor Directors under Section 2.01(i)(a) and
Section 2.01(i)(b)).
Section 2.02 Removal
and Replacement of Directors.
(i) Notwithstanding
anything to the contrary provided in the Memorandum and Articles, the Person(s) entitled to nominate a Director under Section 2.01(i) shall
have the right to remove such Director nominated by it or them. Each of the Parties other than the Company shall vote its Equity Securities
of the Company at any general meeting of Shareholders or execute any written consent or resolution of Shareholders or proxy and take
all other necessary action so as to effectuate the foregoing removal rights. Each Party other than the Company agrees that, if at any
time it is then entitled to vote for or execute any written consent or resolution of Shareholders or proxy for the removal of Directors
from the Board, it shall not vote any of its Equity Securities of the Company or execute proxies or written consents, as the case may
be, in favor of the removal of any Director who shall have been nominated pursuant to Section 2.01, unless the Person or Persons
entitled to nominate such Director pursuant to Section 2.01 shall have consented to such removal in writing.
(ii) If,
as a result of death, disability, retirement, resignation or removal pursuant to Section 2.02(i) of a Director by the Person(s) entitled
under Section 2.01(i) to nominate such Director, the Person(s) entitled under Section 2.01(i) to nominate the
Director whose death, disability, retirement, resignation or removal resulted in such vacancy shall have the absolute and exclusive right
to nominate another individual (each such another individual, the “Replacement Director”) to serve in place of such
Director. Each of the Parties other than the Company agrees that (i) he or it shall, to the extent in compliance with Applicable
Laws, cause the Director(s) nominated by him or it to vote at any meeting of the Board or execute any written resolution or consent
of Directors and take all other necessary actions in order to elect the Replacement Director to serve as a Director to fill such vacancy;
and (ii) he or it shall vote (and, in the case of any Principal Party, cause any Affiliate Controlled by such Principal Party to
vote) all of his or its Equity Securities of the Company at any general meeting of Shareholders or execute any written resolution or
consent of Shareholders or proxy and take all other necessary action, in order to elect the Replacement Director to serve as a Director
to fill such vacancy. The Company further agrees to take any and all necessary actions within its control in order to ensure the election
of the Replacement Director to serve as a Director as set forth in this Section 2.02.
(iii) Prior
to his or her appointment as a replacement Investor Director, any individual nominated by the Investors and/or its Affiliates after the
date of this Agreement to serve on the Board pursuant to this Section 2.02 shall first provide to the Company and the Board a duly
executed and appropriately responsive customary “D&O Questionnaire.”
(iv) So
long as an Investor Director is then serving on the Board, the Company shall, upon the reasonable request of the Investors and/or its
Affiliates, designate and appoint the Investor Director to each committee of the Board so requested by the Investors and/or its Affiliates,
subject always to (a) any restriction on such Investor Director (or any nominee of the Investors and/or their Affiliates) from serving
on such committee, (b) the satisfaction of any qualifications (including “independence”) required of such Investor Director
to serve on such committee, in each case, as may be imposed or promulgated under Applicable Laws (including limitations under the Sarbanes–Oxley
Act of 2002, as amended) and the rules and regulations of any securities exchange where the Company’s Equity Securities are
then listed.
(v) The
Company shall maintain customary D&O insurance for all members of the Board. The Company shall procure, to the extent permitted by
Applicable Law, that any Investor Director shall enjoy the same indemnification rights and D&O insurance coverage as any other members
of the Board.
(vi) The
Company shall procure, to the extent permitted by Applicable Law, that the Subsidiaries implement the resolutions adopted by the Board
and shall not take any actions that contravene the resolutions adopted by the Board.
Section 2.03 Investor
Agreements. Each Investor undertakes to the Company that:
(i) with
respect to each election of Directors by resolution of shareholders of the Company, it shall exercise all voting rights attaching to
the Equity Securities of the Company it holds at all times and from time to time at any shareholder meeting, adjournment, postponement
or continuation thereof, or consent of shareholders, in order to (i) cause the election or re-election as members of the Board of
each of the individuals designated by the Company, and (ii) against any nominees not designated by the Company; and
(ii) with
respect to each appointment of a Director by resolution of the Board, whether to fill a casual vacancy, upon any increase in the size
of the Board or otherwise, it shall cause any Investor Director then serving to vote at each meeting of the Directors, or in lieu of
any such meeting, to give his or her written consent as may be necessary (i) to cause the appointment as a member of the Board each
of the individuals designated by a majority of the Directors then serving (other than the Investor Director), and (ii) against any
nominees not designated by a majority of the Directors then serving (other than the Investor Director).
Section 2.04 Board
Approval Matters.
In addition to any requirements
imposed by Applicable Law, this Agreement, the Memorandum and Articles and any other constitutional documents of the Company, the Company
shall not, and shall cause its Subsidiaries not to, take any action with respect to any of the matters set forth on SCHEDULE A hereto
without approval of the Board.
Article III
PRINCIPAL LOCK-UP.
Section 3.01 Principal
Lock-up.
Subject to Section 3.02, during the Principal
Lock-up Period, no Principal Party shall Transfer, or publicly announce an intention to Transfer, any Equity Securities in the Company
directly or indirectly held by the Principal Party as of July 12, 2021 (excluding the Class A Ordianry Shares held by BOCOM
International Supreme Investment Limited), without the prior written consent of all the Investors. The Principal irrevocably agrees to
cause and guarantee the performance by the Principal Holding Company of all of its covenants and obligations under this Section 3.01.
Any purported Transfer by any Principal Party in violation of this Section 3.01 shall be null and void and of no force and effect
and the Company shall refuse to recognize any such Transfer and shall not register or otherwise reflect on its records any change in
ownership of such Equity Securities in the Company purported to have been Transferred.
Section 3.02 Permitted
Transfers.
(i) Regardless
of anything else contained herein, Section 3.01 shall not apply to Transfers of Equity Securities of the Company by the Principal
Holding Company (i) to the Principal, a Relative of the Principal, a trust formed for the exclusive benefit of the Principal or
his Relatives, or an entity 100% Controlled exclusively by the Principal, or (ii) through will or intestacy, in each case where
the transferee shall have executed and delivered to each of the Parties (other than the transferor) an instrument, reasonably acceptable
to the other Parties, agreeing to be bound by the terms and conditions of this agreement as if such transferee were the transferor.
(ii) Any
transferee of Equity Securities expressly contemplated under Section 3.02 is hereinafter referred to as a “Permitted Transferee”.
If any Permitted Transferee to which Equity Securities of the Company are Transferred ceases to be a Permitted Transferee of the Party
from which or whom it acquired such Equity Securities of the Company pursuant to such provision, such Person shall reconvey such Equity
Securities of the Company to such transferring Party (or another Permitted Transferee of such Party) immediately before such Person ceases
to be a Permitted Transferee of such transferring Party so long as such Person knows of its upcoming change of status immediately prior
thereto. If such change of status is not known until after its occurrence, the former Permitted Transferee shall make such Transfer to
such transferring Party (or another Permitted Transferee of such Party) as soon as practicable after the former Permitted Transferee
receives notice thereof.
Article IV
ConfidentialitY
Section 4.01 General
Obligations. Each Party undertakes to the other Parties that it shall not reveal, and that it shall use its commercially reasonable
efforts to procure that its respective Representatives who are in receipt of any Confidential Information do not reveal, to any third
party any Confidential Information without the prior written consent of the concerned Party. The term “Confidential Information”
as used in this Article IV means: (a) any non-public information concerning the organization, structure, business or financial
results or condition of any Party, including but not limited to any non-public information that the Investors may have or acquire in
relation to any Group Members or its customers, business, assets or affairs; (b) the terms of this Agreement, the 2021 Transaction
Documents, the 2022 Transaction Documents and the Transaction Documents, and the identities of the Parties and their respective Affiliates;
and (c) any other information or material prepared by a Party or its Representatives to the extent it contains or otherwise reflects,
or is generated from, Confidential Information (collectively, the “Confidential Information”); provided that “Confidential
Information” shall not include information that is (i) or becomes generally available to the public other than as a result
of disclosure by or at the direction of a Party or any of its Representatives in breach of this Agreement, (ii) or becomes available
to a Party from a source other than the Company, (iii) already in the possession of the Party on the date hereof (other than information
furnished by or on behalf of a Party) or (iv) independently developed by the Party without violating any of the confidentiality
terms herein.
Section 4.02 Exceptions.
The provisions of Section 4.01 shall not apply to:
(i) disclosure
by a Party to a Representative or an Affiliate if such Representative or Affiliate (a) is under a similar obligation of confidentiality
or (b) is otherwise under a binding professional obligation of confidentiality;
(ii) disclosure,
after giving prior notice to the other Parties to the extent practicable under the circumstances and subject to any practicable arrangements
to protect confidentiality, to the extent requested or required under the rules of any stock exchange on which the Equity Securities
of a Party or any of its Affiliates are listed or by Laws or governmental regulations or judicial or regulatory process or in connection
with any proceeding arising out of or relating to this Agreement; provided that no prior notice to any Party shall be required to be
given under this Section 4.02 with respect to any proceeding commenced or brought by a Party in pursuit of its rights or in the
exercise of its remedies arising out of this Agreement, the 2021 Transaction Documents, the 2022 Transaction Documents and the Transaction
Documents;
(iii) disclosure
by the Investors or its Affiliates to a financing source in connection with a bona fide loan or financing arrangement, if the recipient
agrees in writing prior to any such disclosure to be subject to confidentiality obligations substantially similar to those set forth
in this Article IV;
(iv) following
notification in writing to the Company on a no names basis, disclosure by any Investor or its Affiliates to a bona fide potential purchaser
of any portion or all of the Equity Securities of the Company held by such Investor or its Affiliates to the extent necessary for such
potential purchaser to evaluate such a proposed transaction or for other similar business purposes, if the recipient agrees in writing
prior to any such disclosure to be subject to confidentiality obligations substantially similar to those set forth in this Article IV,
of which the Company is a third-party beneficiary; or
(v) disclosure
by the Investors or its Affiliates of Confidential Information that is reasonably necessary in connection with its reporting requirements
to its shareholders, limited partners and/or director or indirect investors in the ordinary course of business in each case, so long
as the Persons being disclosed such information have been advised of the confidential nature of such information
Section 4.03 Press
Release. Notwithstanding the foregoing, without the prior written consent of the Investors, the Company shall not disclose any Confidential
Information or make any press releases that contains any Confidential Information, even if such disclosure or press release is required
by Applicable Laws, regulations or stock exchange rules. The final form of any such disclosure or press release shall be approved in
advance in writing by each Party.
Section 4.04 Overriding
Provision. The provisions of this Article IV shall supersede the provisions of any separate nondisclosure agreements executed
by any of the Parties with respect to the transactions contemplated hereby, and all such other nondisclosure agreements shall be terminated
and null and void as between the Parties, including without limitation, any term sheet, letter of intent, memorandum of understanding
or other similar agreement entered into by two or more of the Parties in respect of the transactions contemplated hereby.
Article V
Representation and Warranties
Each Party severally but not
jointly represents and warrants, with respect to itself, to the other Parties that:
Section 5.01 Existence.
Such Party (other than the Principal) has been duly organized, is validly existing and is in good standing under the laws of
its jurisdiction of organization.
Section 5.02 Capacity.
Such Party has the requisite power and authority to enter into and perform its or his respective obligations under this Agreement
and consummate the transactions contemplated hereby.
Section 5.03 Authorization
And Enforceability. This Agreement has been duly authorized, executed and delivered by such Party, and assuming the due authorization,
execution and delivery by each of the other Parties, this Agreement is a valid and binding agreement of such Party, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights
generally and general principles of equity.
Section 5.04 Non-Contravention.
Neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any provision of the memorandum and articles or other constitutional documents of such Party (other than the Principal);
(ii) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction
of any government, Governmental Entity or court to which such Party is subject, or (iii) conflict with, result in a breach of, constitute
a default under, result in the acceleration of or creation of an Encumbrance under, create in any party the right to accelerate, terminate,
modify, or cancel, or require any notice under, any agreement, contract, lease, license, instrument, or other arrangement to which such
Party is a party or by which such Party is bound or to which any assets of such Party are subject, except in the case of clauses (ii) or
(iii) as would not have a material adverse effect. There is no action, suit or proceeding, pending or, to the knowledge of such
Party, threatened against such Party that questions the validity of this Agreement or the right of such Party to enter into this Agreement
to consummate the transactions contemplated hereby.
Article VI
termination
Section 6.01 General.
Save for the provisions which Section 6.03 provides shall continue in full force following termination for any reason whatsoever,
this Agreement shall terminate immediately upon the mutual written consent of the Parties hereof (or their respective lawful successors
and assigns).
Section 6.02 Termination
with Respect to a Shareholder. Subject to the transfer resstricitons set forth herein and in the Investors’ Rights Agreement,
upon the Transfer by any of the Investors or the Principal Holding Company of all of the Equity Securities of the Company registered
in its name to a Permitted Transferee in accordance with the terms and conditions of the Investors’ Rights Agreement, such Party
(and with respect to the Principal Holding Company, the Principal Parties) shall automatically cease to be a party to this Agreement
and shall have no further rights or obligations hereunder.
Section 6.03 Survival.
If this Agreement terminates, the Parties shall be released from their obligations under this Agreement, except that (i) Article I,
Article IV, this Section 6.03, Section 7.01, Section 7.15 and Section 7.16 shall continue to exist after the
termination of this Agreement in accordance with their terms, and (ii) termination of this Agreement shall not affect any rights
or liabilities that the Parties have accrued under this Agreement prior to such termination.
Article VII
Miscellaneous.
Section 7.01 Notices.
All notices, requests, demands and other communications that are required or may be given pursuant to the terms of this Agreement
shall be in writing, and delivery shall be deemed sufficient in all respects and to have been duly given as follows: (a) on the
actual date of service if delivered personally; (b) at the time of receipt if given by electronic mail to the e-mail addresses set
forth in this Section 7.01; (c) on the third day after mailing if mailed by first-class mail return receipt requested, postage
prepaid and properly addressed as set forth in this Section 7.01; or (d) on the day after delivery to a nationally recognized
overnight courier service during its business hours for overnight delivery against receipt, and properly addressed as set forth in this
Section 7.01:
If to the Investors:
Joy Capital
|
Astral Success Limited
[***] |
| NIO Capital |
Abundant Grace Investment Limited, Abundant Glory
Investment L.P.
[***] |
| |
|
| If to the Company: |
Uxin Limited
[***] |
| |
|
If
to Principal Parties
Principal |
[***] |
| |
|
| Principal Holding Company |
Xin Gao Group Limited
[***] |
Any party may change its address
or other contact information for notice by giving notice to each other party in accordance with the terms of this Section 7.01.
In no event will delivery to a copied Person alone constitute delivery to the party represented by such copied Person.
Section 7.02 Further
Assurances. Upon the terms and subject to the conditions herein, each of the Parties agrees to use its reasonable best efforts to
take or cause to be taken all action, to do or cause to be done, to execute such further instruments, and to assist and cooperate with
the other Parties in doing, all things necessary, proper or advisable under Applicable Laws or otherwise to consummate and make effective,
in the most expeditious manner practicable, the transactions contemplated by this Agreement, the other Transaction Documents, the 2021
Transaction Documents and the 2022 Transaction Documents, including but not limited that the Company and the Principal Parties shall
(a) use their best efforts to ensure that the rights granted under Section 2.01 and Section 7.03 to the Investors and/or
its Affiliates are effective and that the Investors and/or its Affiliates enjoy the benefits thereof, and (b) take any and all actions
as may be necessary, advisable or reasonably requested by the Investors and/or its Affiliates in order to carry out the transactions
contemplated by Section 2.01 and Section 7.03 and to protect the rights of the Investors and/or its Affiliates under Section 2.01
and Section 7.03 against impairment.
Section 7.03 Assignments
and Transfers. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and
permitted assigns. No Party may assign this Agreement or any of its rights, interests, or obligations hereunder without the prior written
approval of the other Parties; provided, however, that (a) each Investor may assign this Agreement to (i) any Affiliate of
such Investor without the prior consent of the other Parties, (ii) to any transferee with a Transfer of the Senior Preferred Shares,
the Conversion Shares or ADSs to such third party, and (iii) for collateral security purposes, to any lender of the Investor or
any of its Affiliates in connection with a bona fide loan or financing arrangement secured by the Senior Preferred Shares, the Conversion
Shares or ADSs; (b) the Principal Holding Company shall assign this Agreement to any Permitted Transferee of the Principal Holding
Company with a Transfer of all Equity Securities of the Company it holds to such Permitted Transferee.
Section 7.04 Rights
Cumulative; Specific Performance. Except as specifically set forth herein, the rights and remedies of the parties to this Agreement
are cumulative and not alternative. To the maximum extent permitted by Applicable Laws, (a) no claim or right arising out of this
Agreement can be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed
by the other party; (b) no waiver that may be given by a party will be applicable except in the specific instance for which it is
given; and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of that party or of the right
of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement. The Parties
agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and
that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the
performance of the terms and provisions hereof in any court of competent jurisdiction, in addition to any other remedy to which they
are entitled at law or in equity.
Section 7.05 Amendment.
This Agreement may be amended only by a written instrument executed by each of the Parties.
Section 7.06 Waiver.
No waiver of any provision of this Agreement shall be effective unless set forth in a written instrument signed by the Party waiving
such provision. No failure or delay by a Party in exercising any right, power or remedy under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of the same preclude any further exercise thereof or the exercise of any other right,
power or remedy. Without limiting the foregoing, no waiver by a Party of any breach by any other Party of any provision hereof shall
be deemed to be a waiver of any subsequent breach of that or any other provision hereof.
Section 7.07 No
Presumption. The Parties acknowledge that any Applicable Law that would require interpretation of any claimed ambiguities in this
Agreement against the Party that drafted it has no application and is expressly waived. If any claim is made by a Party relating to any
conflict, omission or ambiguity in the provisions of this Agreement, no presumption or burden of proof or persuasion will be implied
because this Agreement was prepared by or at the request of any Party or its counsel.
Section 7.08 Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other Governmental
Entity to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall
remain in full force and effect and shall in no way be affected, impaired or invalidated 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 a determination, the Parties
shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an
acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent
possible.
Section 7.09 Entire
Agreement. This Agreement and the other Transaction Documents, the 2022 Transaction Documents, or the 2021 Transaction Documents
(as the case may be) constitute the entire agreement and understanding among the parties hereto and thereto with respect to the subject
matters hereof and thereof and supersede any prior understandings, agreements or representations by or among the parties, written or
oral, related to the subject matters hereof and thereof, including the 2021 Voting Agreement and the 2022 Voting Agreement. Each of the
2021 Voting Agreement and the 2022 Voting Agreement is terminated in its entirety by virtue of this Agreement.
Section 7.10 Counterparts.
This Agreement may be executed in separate counterparts, each of which shall be an original and all of which taken together shall
constitute one and the same agreement. Signatures in the form of facsimile or electronically imaged “PDF” shall be deemed
to be original signatures for all purposes hereunder. The parties irrevocably and unreservedly agree that this Agreement may be executed
by way of electronic signatures and the parties agree that this Agreement, or any part thereof, shall not be challenged or denied any
legal effect, validity and/or enforceability solely on the ground that it is in the form of an electronic record.
Section 7.11 Descriptive
Headings; Construction. The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part
of this Agreement. The Parties agree that this Agreement is the product of negotiation between sophisticated parties and individuals,
all of whom were represented by counsel, and each of whom had an opportunity to participate in and did participate in the drafting of
each provision hereof. Accordingly, ambiguities in this Agreement, if any, shall not be construed strictly or in favor of or against
any party but rather shall be given a fair and reasonable construction without regard to the rule of contra proferentem.
Section 7.12 Control.
In the event of any conflict or inconsistency between any of the terms of this Agreement and any of the terms of the Charter Documents
for any of the Group Members, or in the event of any dispute related to this Agreement or any such Charter Document, the terms of this
Agreement shall prevail in all respects among the Parties, and the Parties shall give full effect to and act in accordance with the provisions
of this Agreement over the provisions of the Charter Documents.
Section 7.13 Adjustments
for Share Splits, Etc. Wherever in this Agreement there is a reference to a specific number of Shares, then, upon the occurrence
of any subdivision, combination or share dividend of the Shares, the specific number of shares so referenced in this Agreement shall
automatically be proportionally adjusted, as appropriate, to reflect the effect on the outstanding Shares by such subdivision, combination
or share dividend.
Section 7.14 Use
of English Language. This Agreement has been executed and delivered in the English language. Any translation of this Agreement into
another language shall have no interpretive effect. All documents or notices to be delivered pursuant to or in connection with this Agreement
shall be in the English language or, if any such document or notice is not in the English language, accompanied by an English translation
thereof, and the English language version of any such document or notice shall control for purposes thereof.
Section 7.15 Governing
Law. This Agreement shall be governed by and construed in accordance with the laws of Hong Kong, without regard to its principles
of conflicts of laws.
Section 7.16 Dispute
Resolution.
(i) Each
of the Parties hereto irrevocably (i) agrees that any dispute or controversy arising out of, relating to, or concerning any interpretation,
construction, performance or breach of this Agreement, shall be settled by arbitration to be held in Hong Kong and administered by the
Hong Kong International Arbitration Centre (“HKIAC”) in accordance with the Hong Kong International Arbitration Centre
Administered Arbitration Rules in force at the time of the commencement of the arbitration, (ii) waives, to the fullest extent
it may effectively do so, any objection which it may now or hereafter have to the laying of venue of any such arbitration, and (iii) submits
to the exclusive jurisdiction of Hong Kong in any such arbitration. There shall be three (3) arbitrators. The claimant shall appoint
one (1) arbitrator, and the respondent shall appoint one (1) arbitrator no more than ten (10) days following the official
appointment of the arbitrator appointed by the claimant, failing which such arbitrator shall be appointed by HKIAC; the third arbitrator
shall be the presiding arbitrator and shall be appointed jointly by the arbitrators ap-pointed by the claimant and respondent within
ten (10) days of the later of the appointment of the arbitrators appointed by the said Parties, failing which such arbitrator shall
be appointed by HKIAC.
(ii) The
arbitration shall be conducted in English.
(iii) The
Parties acknowledge and agree that, in addition to contract damages, the arbitrator may award provisional and final equitable relief,
including injunctions, specific performance and lost profits.
(iv) The
decision of the arbitration tribunal shall be final, conclusive and binding on the Parties to the arbitration. Judgment may be entered
on the arbitration tribunal’s decision in any court having jurisdiction.
(v) When
any dispute occurs and when any dispute is under arbitration, except for the matters in dispute, the Parties shall continue to fulfil
their respective obligations and shall be entitled to exercise their rights under this Agreement.
(vi) The
Parties understand and agree that this provision regarding arbitration shall not prevent any Party from pursuing preliminary, equitable
or injunctive relief in a judicial forum pending arbitration in order to compel another Party to comply with this provision, to preserve
the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable
harm. A request for such equitable or injunctive relief shall not waive this arbitration provision.
(vii) The
Parties expressly consent to the joinder of additional part(ies) in connection with the Transaction Documents to the arbitration proceedings
commenced hereunder and/or the consolidation of arbitration proceedings commenced hereunder with arbitration proceedings commenced pursuant
to the arbitration agreements contained in the Transaction Documents. In addition, the Parties expressly agree that any disputes arising
out of or in connection with this Agreement and the Transaction Documents concern the same transaction or series of transactions.
(viii) If
any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled
to reasonable attorney's fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
Section 7.17 Deed
of Adherence. Any transferee of an Investor who acquires rights, interests and obligations of this Agreement pursuant to Section 7.03
hereof, may, by signing and delivering a Deed of Adherence in substantially the form attached hereto as SCHEDULE C, join and become a
party to this Agreement as an “Investor” with the same force and effect as if it were originally a party hereto.
[The remainder of this page has been intentionally
left blank.]
IN WITNESS WHEREOF, the Parties
hereto have caused their respective duly authorized representatives to execute this Agreement on the date and year first above written.
COMPANY:
| UXIN LIMITED |
|
| |
|
| By |
/s/ Kun DAI |
|
| Print Name: Kun DAI (戴琨) |
|
| Title: Director |
|
[Signature page to Amended and Restated
Voting Agreement]
IN WITNESS WHEREOF, the Parties
hereto have caused their respective duly authorized representatives to execute this Agreement on the date and year first above written.
PRINCIPAL:
| /s/ Kun DAI |
|
| Kun DAI (戴琨) |
|
| |
|
| PRINCIPAL HOLDING COMPANY: |
|
| |
|
| Xin Gao Group Limited |
|
| |
|
| By |
/s/ Kun DAI |
|
| Print Name: Kun DAI (戴琨) |
|
| Title: Director |
|
[Signature page to Amended and Restated
Voting Agreement]
IN WITNESS WHEREOF, the Parties
hereto have caused their respective duly authorized representatives to execute this Agreement on the date and year first above written.
INVESTOR:
JOY
CAPITAL
ASTRAL SUCCESS LIMITED
| By |
/s/ Erhai Liu |
|
| Print Name: Erhai Liu |
|
| Title: Authorized Signatory |
|
[Signature page to
Amended and Restated Voting Agreement]
IN WITNESS WHEREOF, the Parties
hereto have caused their respective duly authorized representatives to execute this Agreement on the date and year first above written.
INVESTOR:
NIO
CAPITAL
ABUNDANT GRACE INVESTMENT LIMITED
| By |
/s/ Mao Wei |
|
| Print Name: Mao Wei |
|
| Title: Director |
|
[Signature page to Amended and Restated
Voting Agreement]
IN WITNESS WHEREOF, the Parties
hereto have caused their respective duly authorized representatives to execute this Agreement on the date and year first above written.
INVESTOR:
NIO
CAPITAL
ABUNDANT GLORY INVESTMENT L.P.
acting through Nio Capital II LLC in its capacity
as the general partner
| By |
/s/ Zhu Yan |
|
| Print Name: Zhu Yan |
|
| Title: Authorized Signatory |
|
[Signature page to Amended and Restated
Voting Agreement]
SCHEDULE A
BOARD APPROVAL MATTERS
| 1. | Adoption, change or waiver of any provision
of the Company’s memorandum and articles of association or other Charter Documents
of any Group Member. |
| 2. | Delisting of the ADSs from NASDAQ. |
| 3. | Any authorization, creation or issuance by
any Group Member of any New Securities or any instruments that are convertible into securities,
excluding (x) any issuance of Ordinary Shares upon conversion of the Senior Preferred
Shares, (y) any issuance of Ordinary Shares (or options or warrants therefor) under
any written share incentive plans duly approved, and (z) any issuance of securities
as a dividend or distribution on Ordinary Share. |
| 4. | (x) Any adoption of new share incentive
plan by any Group Member or change of the Existing Share Incentive Scheme; or (y) grant
of awards that represent over 0.5% of the Company’s outstanding Shares to any individual
under any share incentive plans of the Company. |
| 5. | Any repurchase or redemption of any Equity
Securities of any Group Member (including the manner in which such repurchase or redemption
is structured) other than pursuant to contractual rights to repurchase Ordinary Shares from
the employees, officers, directors or consultants of the Group Members upon termination of
their employment or services. |
| 6. | Any merger, amalgamation, consolidation, scheme
of arrangement or reorganization (i) in which the Company is not the surviving entity
or (ii) following which the holders of the voting securities of the Company do not continue
to hold more than 50% of the combined voting power of the voting securities of the surviving
entity. |
| 7. | Any transaction or series of transactions in
which more than 50% of the voting power of any Group Member (other than the Company) is transferred
or in which a majority of the assets of any Group Member are sold. |
| 8. | Declare, set aside or pay any dividend or other
distribution (whether in cash, stock or property or any combination thereof) in respect of
its Equity Securities or make any other actual, constructive or deemed distribution in respect
of any of its Equity Securities or otherwise make any payments to shareholders in their capacity
as such, except for cash dividends made by any direct or indirect wholly-owned Subsidiary
of the Company to the Company or one of its wholly-owned Subsidiaries. |
| 9. | Pass any resolution for the winding up of the
Company and/or any other Group Member, scheme of arrangement, reorganization, reconstruction,
dissolution or liquidation concerning the Company and/or any other Group Member, or appointing
a receiver, trustee, or other similar official for it or for any substantial part of its
property. |
| 10. | Any merger, amalgamation, consolidation, scheme
of arrangement or reorganization of the Company following which transaction, any NIO Competitor
would hold more than 50% of the combined voting power of the voting securities of the surviving
entity. |
| 11. | The entry into any binding agreement to privatize
the Company following which privatization any NIO Competitor would hold more than 50% of
the combined voting power of the voting securities of the Company or, if the Company is not
the surviving entity of such privatization, the surviving entity. |
SCHEDULE A
| 12. | Approval or amendment of annual business plan
and Annual Budget or any strategic plan. |
| 13. | Appointment, replacement, removal, dismissal
or settlement or change of terms of employment of the chief executive officer, the chief
financial offer, the chief operating officer, the general manager or the five (5) most
highly compensated employees or officers of the Company. |
| 14. | To the extent not already approved in the
Annual Budget or the Quarter Budget, any investment in any entity or any acquisition of another
company with consideration, whether in cash or otherwise, in excess of RMB50 million in valuation;
or any disposal of or dilution of the Company’s interest, directly or indirectly, in
any other Group Member; or any Transfer of any Equity Securities (or any interest therein)
of any Group Member (other than the Company). |
| 15. | To the extent not already approved in the
Annual Budget or the Quarter Budget, any purchase, license, lease, transfer or disposal of
assets, properties, goodwill and businesses in excess of RMB1 million individually or in
excess of RMB5 million collectively during any financial year. |
| 16. | To the extent not already approved in the
Annual Budget or the Quarter Budget, any advertising or user acquisition agreements in excess
of RMB1 million individually or in excess of RMB5 million collectively during any financial
year. |
| 17. | To the extent not already approved in the
Annual Budget or the Quarter Budget, any incurrence of debt, any investment in any indebtedness,
any provision of any guarantee, indemnity or mortgage for any indebtedness or advance of
any loan to any third party, in each case in excess of RMB1 million individually or in excess
of RMB5 million collectively during any financial year. |
| 18. | To the extent not already approved in the
Annual Budget or the Quarter Budget, any capital expenditure projects or agreements in excess
of RMB1 million individually or in excess of RMB5 million collectively during any financial
year, other than purchase of automobiles in the ordinary course of the Company’s business
consistent with past practice. |
| 19. | Ceasing to conduct or carry on the business
of the Company and/or any other member of the Group substantially as currently conducted
as of the date of this Agreement or change any part of its major business activities. |
| 20. | Any transaction with Related Party (excluding
for such purposes any member of the Group) that is not on an arm's length basis or which
is not contemplated in the Company's annual business plan and budget duly approved and adopted. |
SCHEDULE A
SCHEDULE B
ADVERSE PERSONS
[***]
SCHEDULE B
SCHEDULE C
DEED OF ADHERENCE
THIS
DEED is made on [*], 202[3] by [*] of [*] (the “New Party”)
WHEREAS:
| (A) | On
June 30, 2023, the Company and certain other parties thereto entered into an amended
and restated voting agreement (as amended, supplemented or novated from time to time, the
“Voting Agreement”). |
| (B) | This
Deed is entered into to record and effect the admission of the New Party under the Voting
Agreement. |
NOW
THIS DEED WITNESSES as follows:
| 1. | Unless
the context otherwise requires, (a) words and expressions defined in the Voting Agreement
shall have the same meanings when used in this Deed, and (b) the rules of interpretation
contained in Section 1.02 (Interpretation) of the Voting Agreement shall
apply to the construction of this Deed. |
| 2. | The
New Party hereby confirms that it has been supplied with a copy of the Voting Agreement,
and has reviewed the same and understands its contents. |
| 3. | The
New Party undertakes to each of the parties to the Voting Agreement (whether assuming any
rights or obligations under the Voting Agreement on the date of the Voting Agreement or thereafter)
to be bound by and comply in all respects with the Voting Agreement, and to assume the benefits
of the Voting Agreement, as if the New Party had executed the Voting Agreement as [an Investor,
Joy Capital / NIO Capital, Principal Party] and was named as a party to it. |
| 4. | The
New Party warrants and undertakes to each of the Parties to the Voting Agreement (and each
other Person who may from time to time expressly adhere to the Voting Agreement) in the terms
set out in Article V of the Voting Agreement (except that the warranty set out
in Section 5.01 (Existence) of the Voting Agreement shall not be given
by the New Party if it is an individual), but so that such warranties and undertakings shall
be deemed to be given on the date of this Deed and shall be deemed to refer to this Deed. |
| 5. | This
Deed is made for the benefit of: |
| (a) | the
parties to the Voting Agreement; and |
| (b) | any
other Person who may after the date of the Voting Agreement (and whether or not prior to,
on or after the date hereof) assume any rights or obligations under the Voting Agreement
and be permitted to do so by the terms thereof; |
and this Deed shall be irrevocable.
| 6. | The
address and e-mail address of the New Party for the purpose of Section 7.01 (Notices)
of the Voting Agreement shall be as follows: |
| For the attention of: |
[*] |
SCHEDULE C
| 7. | This
Deed shall be read as one with the Voting Agreement so that any reference in the Voting Agreement
to “this Deed” and similar expressions shall include this Deed. |
| 8. | Section 7.15 (Governing Law) and Section 7.16 (Dispute Resolution) of the
Voting Agreement shall apply to this Deed. This Deed and any non-contractual obligations
arising out of or in connection with this Deed shall be governed by and construed in accordance
with the laws of Hong Kong. |
[Signature Pages Follow]
SCHEDULE C
IN
WITNESS WHEREOF the undersigned has hereto executed and delivered this Deed as of the day and year first above written.
SIGNED, SEALED and DELIVERED
as a deed by
[*] acting by
__________________________,
who is duly authorised to sign on its behalf
|
|
Director/Authorised Signatory
|
SCHEDULE C
EXHIBIT 3
Execution Version
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS
AGREEMENT (the “Agreement”) is made on August 17, 2023 by and among Uxin Limited, a company organized and existing
under the laws of the Cayman Islands (the “Company”), and Astral Success Limited, a company limited by shares incorporated
under the laws of British Virgin Islands (the “Investor”).
RECITALS
WHEREAS, the Company and
the Investor are parties to an Agreement in Relation to Amendment to and Exercise of Warrants Issued by Uxin Limited dated June 30,
2023 (the “Warrant Agreement”), pursuant to which the Company agrees to issue and the Investor agrees to subscribe
for certain Senior Preferred Shares upon the exercise of Joy Warrant, which are convertible into Class A Ordinary Shares of the
Company or American depositary shares of the Company (“ADSs”), each representing thirty (30) Class A Ordinary
Shares; and
WHEREAS, in connection with
the consummation of the transactions contemplated by the Warrant Agreement, and pursuant to the terms of the Warrant Agreement, the parties
desire to enter into this Agreement in order to grant certain rights to the Investor as set forth below.
NOW, THEREFORE, in consideration
of the covenants and promises set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
AGREEMENT
1. Certain
Definitions. Unless the context otherwise requires, the following terms, for all purposes of this Agreement, shall have the meanings
specified in this Section 1.
“ADSs”
has the meaning set forth in the recitals.
“ADS Conversion”
has the meaning set forth in Section 2.8(a).
“Affiliate”
has the meaning set forth in Rule 12b-2 of the rules and regulations promulgated under the Exchange Act; provided,
however, that for purposes of this Agreement, the Investor and its Affiliates, on the one hand, and the Company and its Affiliates,
on the other, shall not be deemed to be “Affiliates” of one another.
“Agreement”
has the meaning set forth in the preamble.
“Applicable Laws”
means, with respect to any Person, any transnational, domestic or foreign federal, national, state, provincial, local or municipal law
(statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, executive order, injunction, judgment,
decree, ruling or other similar requirement enacted, adopted, promulgated or applied by a governmental entity that is binding upon or
applicable to such Person or any of such Person’s assets, rights or properties.
“Blue
Sky Application” has the meaning set forth in Section 2.7(a).
“Board”
means the board of directors of the Company.
“Business Day”
means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking
institutions in the Cayman Islands, the People’s Republic of China (which for the purpose of this Agreement shall exclude Hong
Kong SAR, Macau SAR and Taiwan), or the State of New York are authorized or required by law or other governmental action to close.
“Class A
Ordinary Shares” has the meaning ascribed to such term in the Warrant Agreement.
“Closing”
has the meaning ascribed to such term in the Warrant Agreement.
“Closing
Date” has the meaning ascribed to such term in the Warrant Agreement.
“Company”
has the meaning set forth in the preamble.
“Conversion
Shares” has the meaning ascribed to such term in the Warrant Agreement.
“Depositary”
means the Bank of New York Mellon, or any other successive depositary bank of the Company.
“Effective
Date” means the date that a Registration Statement filed pursuant to Section 2.1(a) is first declared effective by
the SEC.
“Effectiveness
Deadline” means, with respect to the Shelf Registration Statement or New Registration Statement with respect to the
Registrable Securities issued or issuable upon the conversion of the Senior Preferred Shares issued at the Closing, six (6) months
anniversary of the Closing Date; provided, however, that if the Company is notified by the SEC that the Shelf Registration Statement
or the New Registration Statement will not be reviewed or is no longer subject to further review and comments, the Effectiveness Deadline
as to such Shelf Registration Statement shall be the fifth (5th) Business Day following the date on which the Company is so notified
if such date precedes the dates otherwise required above; provided, further, that if the Effectiveness Deadline falls on a Saturday,
Sunday or other day that the SEC is closed for business, the Effectiveness Deadline shall be extended to the next Business Day on which
the SEC is open for business.
“Event”
has the meaning set forth in Section 2.1(c).
“Event
Date” has the meaning set forth in Section 2.1(c).
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated
thereunder.
“Filing
Deadline” has the meaning set forth in Section 2.1(a).
“FINRA”
means the Financial Industry Regulatory Authority.
“Form F-3”
means such form under the Securities Act as in effect on the date hereof or any successor or similar registration form under the
Securities Act subsequently adopted by the Commission that permits inclusion or incorporation of substantial information by reference
to other documents filed by the Company with the Commission.
“Free
Writing Prospectus” means an issuer free writing prospectus, as defined in Rule 433 under the Securities Act, relating
to an offer of Registrable Securities.
“Holder”
means any Person owning or having the right to acquire Registrable Securities.
“Investor”
has the meaning set forth in the preamble.
“Investor
Representatives” has the meaning set forth in Section 2.5.
“Joy Warrant”
has the meaning ascribed to such term in the Warrant Agreement.
“Liquidated
Damages” has the meaning set forth in Section 2.1(c).
“New
Registration Statement” has the meaning set forth in Section 2.1(a).
“Participating
Holder” means with respect to any registration, any Holder of Registrable Securities covered by the applicable Registration
Statement.
“Person”
has the meaning ascribed to such term in the Warrant Agreement.
“Prospectus”
means the prospectus included in any Registration Statement, all amendments and supplements to such prospectus, including pre-
and post-effective amendments to such Registration Statement, and all other material incorporated by reference in such prospectus.
“Register”,
“registered” and “registration” refer to a registration effected by preparing and filing
a registration statement in compliance with the Securities Act, and the declaration or ordering of effectiveness of such registration
statement or document.
“Registrable
Securities” means any Class A Ordinary Shares issued or issuable upon the conversion of the Senior Preferred Shares,
and Class A Ordinary Shares issued or issuable in respect of such Class A Ordinary Shares upon any anti-dilution provisions,
share split, share dividend, share combination or consolidation, recapitalization, reclassification or other similar event in relation
to the Class A Ordinary Shares (including, in each case, as long as the ADSs remain listed on a national recognized securities market,
Class A Ordinary Shares in the form of ADSs (it being understood that a Holder may receive Class A Ordinary Shares or ADSs
upon conversion of the Senior Preferred Shares, and that while any offers and sales made under a registration statement contemplated
by this Agreement will be of ADSs, the securities to be registered by any such registration statement under the Securities Act are Class A
Ordinary Shares, and the ADSs are registered under a separate Form F-6)); provided, however, that any such Registrable Securities
shall cease to be Registrable Securities for all purposes hereunder upon the earliest to occur of the following: (A) the sale by
any Person of such Registrable Securities to the public either pursuant to a registration statement under the Securities Act or under
Rule 144 (in which case, only such Registrable Securities sold shall cease to be Registrable Securities) or (B) such Registrable
Securities becoming eligible for sale by the Holder pursuant to Rule 144 without volume or manner-of-sale restrictions (but only
if the Company has effected the removal of any legend from the certificates evidencing the Registrable Securities and any ADS Conversion
requested by the Investor).
“Registration
Statement” means any registration statement of the Company that covers Registrable Securities pursuant to the provisions
of this Agreement filed with, or to be filed with, the SEC under the rules and regulations promulgated under the Securities Act,
including the related Prospectus, amendments and supplements to such registration statement, including pre- and post-effective amendments,
and all exhibits and all material incorporated by reference in such registration statement.
“Registration
Expenses” has the meaning set forth in Section 2.4.
“Remainder
Registration Statement” has the meaning set forth in Section 2.1(a).
“Rule 144”
means Rule 144 as promulgated by the SEC under the Securities Act, as such rule may be amended from time to time, or
any similar successor rule that may be promulgated by the SEC.
“SEC”
or “Commission” means the Securities and Exchange Commission or any other federal agency at the time administering
the Securities Act.
“SEC
Guidance” means (i) any publicly-available written or oral guidance, comments, requirements or requests of the
Commission staff and (ii) the Securities Act.
“Securities
Act” means the Securities Act of 1933, as amended, or any similar successor federal statute and the rules and regulations
thereunder, all as the same shall be in effect from time to time.
“Selling Securities”
has the meaning set forth in Annex A.
“Senior
Preferred Shares” has the meaning ascribed to such term in the Warrant Agreement.
“Shelf
Registration Statement” has the meaning set forth in Section 2.1(a).
“Trading Day”
means a day on which the principal Trading Market is open for business.
“Trading Market”
means any of the following markets or exchanges on which the ADSs is listed or quoted for trading on the date in question: the NYSE American,
the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange (or any successors
to any of the foregoing).
“Transaction
Documents” has the meaning ascribed to such term in the Warrant Agreement.
“Warrant Agreement”
has the meaning set forth in the recitals.
| (a) | Registration Statements. |
For the Registrable Securities issued
or issuable upon the conversion of the Senior Preferred Shares issued at the Closing, to the extent such Senior Preferred Shares have
been issued by such time, on or no later than October 30, 2023 (the “Filling Deadline”), the Company shall prepare
and file with the SEC a Registration Statement on Form F-3 (or, if Form F-3 is not then available to the Company, on such form
of registration statement as is then available to effect a registration for resale of the applicable Registrable Securities) for an offering
to be made on a continuous basis pursuant to Rule 415 under the Securities Act (the “Shelf Registration Statement”).
Such Shelf Registration Statement shall, subject to the limitations of Form F-3, include without limitation the aggregate amount
of Registrable Securities to be registered therein and shall contain (except if otherwise required pursuant to written comments received
from the Commission upon a review of such Shelf Registration Statement) the “Plan of Distribution” section in substantially
the form attached hereto as Annex A. To the extent the staff of the SEC does not permit all of the Registrable Securities to be registered
on the Shelf Registration Statement filed pursuant to this Section 2.1(a) or for any other reason any Registrable Securities
are not then included in a Registration Statement filed under this Agreement, the Company shall (i) inform each of the Holders thereof
and use its commercially reasonable efforts to file amendments to the Shelf Registration Statement as required by the Commission; and/or
(ii) withdraw the Shelf Registration Statement and file a new registration statement (a “New Registration Statement”),
in either case covering without limitation the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3
or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior
to filing such amendment or New Registration Statement, the Company shall be obligated to use its commercially reasonable efforts to
advocate with the SEC for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without
limitation, the Manual of Publicly Available Telephone Interpretations D.29. Notwithstanding any other provision of this Agreement and
subject to the payment of Liquidated Damages in Section 2.1(c), if any SEC Guidance sets forth a limitation of the number of Registrable
Securities permitted to be registered on a particular Registration Statement as a secondary offering (and notwithstanding that the Company
used diligent efforts to advocate with the SEC for the registration of all or a greater number of Registrable Securities), unless otherwise
directed in writing by a Holder as to its Registrable Securities, the number of Registrable Securities to be registered on such Registration
Statement will first be reduced by Registrable Securities not acquired pursuant to the Warrant Agreement (whether pursuant to registration
rights, or otherwise, for the avoidance of doubt, the Senior Preferred Shares issued to the Investor prior to the Closing, and the Registrable
Securities owned by the Investor issued or issuable upon the conversion of such Senior Preferred Shares, shall be regarded as acquired
pursuant to the Warrant Agreement), and second by Registrable Securities represented by the Conversion Shares issued or issuable upon
conversion of the Senior Preferred Shares acquired pursuant to the Warrant Agreement (applied, in the case that some Registrable Securities
may be registered, to the Holders on a pro rata basis based on the total number of unregistered Registrable Securities held by such Holders),
subject to a determination by the Commission that certain Holders must be reduced first based on the number of Registrable Securities
held by such Holders. In addition, if any SEC Guidance requires any Person seeking to sell securities under a Registration Statement
filed pursuant to this Agreement to be specifically identified as an “underwriter” in order to permit such Registration Statement
to become effective, and such Person does not consent to being so named as an underwriter in such Registration Statement, then, in each
such case, the Company shall reduce the total number of Registrable Securities to be registered on behalf of such Person, until such
time as the Commission does not require such identification or until such Person accepts such identification and the manner thereof.
In the event the Company amends the Shelf Registration Statement or files a New Registration Statement, as the case may be, under clauses
(i) or (ii) above, the Company will use its commercially reasonable efforts to file with the SEC, as promptly as allowed by
SEC or SEC Guidance provided to the Company or to registrants of securities in general, one or more Registration Statements on Form F-3
or such other form available to register for resale those Registrable Securities that were not registered for resale on the Shelf Registration
Statement, as amended, or the New Registration Statement (the “Remainder Registration Statement”).
| (i) | The Company shall use reasonable best
efforts to have the Shelf Registration Statement or New Registration Statement declared effective
as soon as practicable but in no event later than the applicable Effectiveness Deadline (including
filing with the Commission a request for acceleration of effectiveness in accordance with
Rule 461 promulgated under the Securities Act), and shall use its commercially reasonable
efforts to keep the Shelf Registration Statement or New Registration Statement continuously
effective under the Securities Act until the earlier of (a) such time as all of the
Registrable Securities covered by such Registration Statement have been publicly sold by
the Holders; or (b) the date that all Registrable Securities covered by such Registration
Statement may be sold without volume or manner-of-sale restrictions pursuant to Rule 144,
without the requirement for the Company to be in compliance with the current public information
requirement under Rule 144 as determined by the counsel to the Company pursuant to a
written opinion letter to such effect, addressed and reasonably acceptable to the Depositary
and the affected Holders (the “Effectiveness Period”). The Company shall
notify the Investor by facsimile or e-mail as promptly as practicable, and in any event,
within twenty-four (24) hours, after any Registration Statement is declared effective and
shall simultaneously provide the Investor with copies of any related Prospectus to be used
in connection with the sale or other disposition of the securities covered thereby. |
| (ii) | During the Effectiveness Period, the
Company shall use its reasonable best efforts to prevent the issuance of any stop order or
other suspension of effectiveness of each Registration Statement or the use of any Prospectus
contained therein, or the suspension of the qualification, or the loss of an exemption from
qualification, of any of the Registrable Securities for sale in any jurisdiction and, if
such an order or suspension is issued, to obtain the withdrawal of such order or suspension
at the earliest possible moment. |
| (c) | If:
(i) the Shelf Registration Statement is not filed with the SEC on or prior to
the Filing Deadline; (ii) the Shelf Registration Statement or the New Registration Statement,
as applicable, is not declared effective by the SEC (or otherwise does not become effective)
for any reason on or prior to the Effectiveness Deadline; (iii) after its Effective
Date, (A) such Registration Statement ceases for any reason (including without limitation
by reason of a stop order, or the Company’s failure to update the Registration Statement),
to remain continuously effective as to all Registrable Securities included in such Registration
Statement or (B) the Company suspends the use of the Prospectus contained in the Registration
Statement; or (iv) the Company fails to satisfy the current public information requirement
pursuant to Rule 144(c)(1) as a result of which the Holders are unable to sell
Registrable Securities without restriction under Rule 144 (or any successor thereto)
and fails to cure any such failure to satisfy the Rule 144(c)(1) requirement within
fifteen (15) Business Days following the date upon which the Holder notifies the Company
in writing that such Holder is unable to sell Registrable Securities as a result thereof,
(any such failure or breach in clauses (i) through (iv) above being referred to
as an “Event,” and the date on which such Event occurs, being referred
to as an “Event Date”), then in addition to any other rights the Holders
may have hereunder or under Applicable Laws, on each such Event Date and on each monthly
anniversary of each such Event Date (if the applicable Event shall not have been cured by
such date) until the earlier of (1) the applicable Event is cured or (2) the Registrable
Securities are eligible for resale pursuant to Rule 144 without manner of sale or volume
restrictions, the Company shall pay to each Holder an amount in cash, as partial liquidated
damages and not as a penalty (the “Liquidated Damages”), equal to one
percent (1.0%) of the aggregate exercise price paid by such Holder pursuant to the Warrant
Agreement for any unregistered Registrable Securities then held by such Holder. The parties
agree that (1) notwithstanding anything to the contrary herein or in the Warrant Agreement,
no Liquidated Damages shall be payable with respect to any period after the expiration of
the Effectiveness Period (it being understood that this sentence shall not relieve the Company
of any Liquidated Damages accruing prior to the Effectiveness Deadline) and in no event shall,
the aggregate amount of Liquidated Damages payable to a Holder exceed, in the aggregate,
three percent (3%) of the aggregate exercise price paid by such Holder pursuant to the Warrant
Agreement and (2) in no event shall the Company be liable in any thirty (30) day period
for Liquidated Damages under this Agreement in excess of one percent (1.0%) of the aggregate
exercise price paid by the Holders pursuant to the Warrant Agreement. If the Company fails
to pay any Liquidated Damages pursuant to this Section 2.1(c) in full within five
(5) Business Days after the date payable, the Company will pay interest thereon at a
rate of one percent (1.0%) per month (or such lesser maximum amount that is permitted to
be paid by Applicable Laws) to the Holder, accruing daily from the date such Liquidated Damages
are due until such amounts, plus all such interest thereon, are paid in full. The Liquidated
Damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion
of a month prior to the cure of an Event, except in the case of the first Event Date. The
Company shall not be liable for Liquidated Damages under this Agreement as to any Registrable
Securities which are not permitted by the Commission to be included in a Registration Statement
due solely to SEC Guidance from the time that it is determined that such Registrable Securities
are not permitted to be registered until such time as the provisions of this Agreement as
to the Remainder Registration Statements required to be filed hereunder are triggered, in
which case the provisions of this Section 2.1(c) shall once again apply, if applicable.
In such case, the Liquidated Damages shall be calculated to only apply to the percentage
of Registrable Securities which are permitted in accordance with SEC Guidance to be included
in such Registration Statement. The Effectiveness Deadline for a Registration Statement shall
be extended without default or Liquidated Damages hereunder in the event that the Company’s
failure to obtain the effectiveness of such Registration Statement on a timely basis results
from the failure of the Investor to timely provide the Company with information requested
by the Company and necessary to complete the Registration Statement in accordance with the
requirements of the Securities Act (in which the Effectiveness Deadline would be extended
with respect to Registrable Securities held by the Investor). |
| (d) | In the event that Form F-3 is not available
for the registration of the resale of Registrable Securities hereunder, the Company shall
(i) register the resale of the Registrable Securities on another appropriate form reasonably
acceptable to the Holders and (ii) undertake to register the Registrable Securities
on Form F-3 promptly after such form is available, provided that the Company
shall maintain the effectiveness of the Registration Statement then in effect until such
time as a Registration Statement on Form F-3 covering the Registrable Securities has
been declared effective by the Commission. |
| 2.2 | Piggyback Registrations. |
| (a) | If
at any time after the Shelf Registration Statement is declared effective, there is not then
an effective registration statement covering all of the Registrable Securities, and the Company
determines to prepare and file with the SEC a Registration Statement relating to an offering
for its own account or the account of others of any of its equity securities other than (x) a
registration pursuant to a Registration Statement on Form S-8 (or other registration
solely relating to an offering or sale to employees or directors of the Company pursuant
to any employee stock plan or other employee benefit arrangement), (y) pursuant to a
Registration Statement on Form F-4 (or similar form that relates to a transaction subject
to Rule 145 under the Securities Act or any successor rule thereto), or (z) in
connection with any dividend or distribution reinvestment or similar plan, then the Company
shall send to each Holder written notice of such determination and, if within 15 Business
Days after the date of such notice, any such Holder shall so request in writing, the Company
shall include in such Registration Statement all or any part of the Registrable Securities
such Holder requests to be registered. |
| (b) | The Company shall have the right, in its
sole discretion, to postpone, terminate or withdraw any registration initiated by it under
this Section 2.2 prior to the effectiveness of such registration whether or not any
Holder has elected to include Registrable Securities in such registration. |
| 2.3 | Removal
of Legend, Share Certificates. |
| (a) | The
Investor shall have the right to request removal of the legend set forth in Section 5(b) of
the Joy Warrant (with respect to any party joining this Agreement in accordance with
Section 3.11, the respective warrant as applicable) or any other legend from certificates
evidencing Registrable Securities in any of the following circumstances: (i) when the
Registrable Securities are eligible for resale under Rule 144 without restriction; (ii) when
such Registrable Securities are eligible for resale pursuant to the applicable Registration
Statement; or (iii) if such legend is not required under applicable requirements of
the Securities Act (including, without limitation, controlling judicial interpretations and
pronouncements issued by the SEC). |
| (b) | Upon receipt of a request from the Investor
under Section 2.3(a) above, the Company shall, at its own expense, no later than
three (3) Business Days following the delivery by the Investor to the Company of a legended
certificate representing such Registrable Securities (endorsed or with stock powers attached,
signatures guaranteed, and otherwise in form necessary to affect the reissuance and/or transfer,
if applicable), as directed by the Investor, issue and dispatch by overnight courier to the
Investor, a certificate representing such Registrable Securities that is free from all restrictive
and other legends, registered in the name of the Investor or its designee. |
| 2.4 | Expenses.
All expenses incident to the Company’s performance of or compliance with this Agreement
shall be paid by the Company, other than underwriting discounts or commissions deducted from
the proceeds in respect of any Registrable Securities, including (i) all registration
and filing fees, and any other fees and expenses associated with filings required to be made
with the SEC, FINRA or any other regulatory authority and, if applicable, the fees and expenses
of any “qualified independent underwriter” as such term is defined in NASD Rule 2720
(or any successor provision) and of its counsel, (ii) all fees and expenses in connection
with compliance with any securities or “Blue Sky” laws (including fees and disbursements
of counsel for the underwriters in connection with “Blue Sky” qualifications
of the Registrable Securities), (iii) all printing, duplicating, word processing, messenger,
telephone, facsimile and delivery expenses (including expenses of printing certificates for
the Registrable Securities in a form eligible for deposit with The Depository Trust Company
and of printing Prospectuses and Free Writing Prospectuses), (iv) all fees and disbursements
of counsel for the Company and of all independent certified public accountants of the Company
(including the expenses of any special audit and cold comfort letters required by or incident
to such performance), (v) Securities Act liability insurance or similar insurance if
the Company so desires or the underwriters so require in accordance with then-customary underwriting
practice, (vi) all fees and expenses incurred in connection with the listing of Registrable
Securities on any securities exchange or quotation of the Registrable Securities on any inter-dealer
quotation system, (vii) all fees and expenses of any special experts or other Persons
retained by the Company in connection with any registration, (viii) all of the Company’s
internal expenses (including all salaries and expenses of its officers and employees performing
legal or accounting duties), (ix) all transfer agent fees required for same-day processing
of any notice of conversion and all fees to the Depositary and The Depository Trust Company
(or another established clearing corporation performing similar functions), including without
limitation any ADS conversion fees, required for same-day electronic delivery of the Conversion
Shares, and (x) all expenses related to the “road-show” for any underwritten
offering, including all travel, meals and lodging. All such expenses are referred to herein
as “Registration Expenses.” Subject to the Warrant Agreement, the Company
shall not be responsible for any underwriting commissions attributable to the sale of Registrable
Securities or any outside counsel fees of the Investor incurred in connection with the sale
of Registrable Securities. |
| 2.5 | Company
Obligations. The Company will use reasonable best efforts to effect the registration
of the Registrable Securities in accordance with the terms hereof, and pursuant thereto the
Company will: |
| (a) | prepare the required Registration Statement
including all exhibits and financial statements required under the Securities Act to be filed
therewith, and before filing a Registration Statement, Prospectus or any Free Writing Prospectus,
or any amendments or supplements thereto, (x) furnish to the Participating Holders,
if any, copies of all documents prepared to be filed, which documents shall be subject to
the review of such Participating Holders and their respective counsel and (y) except
in the case of a registration under Section 2.2, not file any Registration Statement
or Prospectus or amendments or supplements thereto to which any Participating Holders shall
reasonably object; |
| (b) | file with the SEC a Registration Statement
relating to the Registrable Securities including all exhibits and financial statements required
by the SEC to be filed therewith, and use reasonable best efforts to cause such Registration
Statement to become effective under the Securities Act; |
| (c) | prepare and file with the SEC such pre-
and post-effective amendments to such Registration Statement, supplements to the Prospectus
and such amendments or supplements to any Free Writing Prospectus as may be necessary to
keep such registration effective for the period of time required by this Agreement, and comply
with provisions of the applicable securities laws with respect to the sale or other disposition
of all securities covered by such Registration Statement during such period in accordance
with the intended method or methods of disposition by the sellers thereof set forth in such
Registration Statement; |
| (d) | promptly
notify the Participating Holders, and (if requested) confirm such advice in writing and provide
copies of the relevant documents, as soon as reasonably practicable after notice thereof
is received by the Company (A) when the applicable Registration Statement or
any amendment thereto has been filed or becomes effective, and when the applicable Prospectus
or Free Writing Prospectus or any amendment or supplement thereto has been filed, (B) of
any written comments by the SEC or any request by the SEC for amendments or supplements to
such Registration Statement, Prospectus or Free Writing Prospectus or for additional information,
(C) of the issuance by the SEC of any stop order suspending the effectiveness of such
Registration Statement or any order by the SEC preventing or suspending the use of any preliminary
or final Prospectus or any Free Writing Prospectus or the initiation or threatening of any
proceedings for such purposes, (D) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Registrable Securities for offering
or sale in any jurisdiction and (E) of the receipt by the Company of any notification
with respect to the initiation or threatening of any proceeding for the suspension of the
qualification of the Registrable Securities for offering or sale in any jurisdiction; |
| (e) | promptly notify the Participating Holders
when the Company becomes aware of the happening of any event as a result of which the Registration
Statement, the Prospectus included in such Registration Statement (as then in effect) or
any Free Writing Prospectus contains any untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein (in the case of such Prospectus,
any preliminary Prospectus or any Free Writing Prospectus, in light of the circumstances
under which they were made) not misleading, when any Free Writing Prospectus includes information
that may conflict with the information contained in the Registration Statement, or, if for
any other reason it shall be necessary during such time period to amend or supplement such
Registration Statement, Prospectus or Free Writing Prospectus in order to comply with the
Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare
and file with the SEC and furnish without charge to the Participating Holders an amendment
or supplement to such Registration Statement, Prospectus or Free Writing Prospectus which
shall correct such misstatement or omission or effect such compliance; |
| (f) | promptly incorporate in a Prospectus supplement,
Free Writing Prospectus or post-effective amendment to the applicable Registration Statement
such information as the Participating Holders agree should be included therein relating to
the plan of distribution with respect to such Registrable Securities, and make all required
filings of such Prospectus supplement, Free Writing Prospectus or post-effective amendment
as soon as reasonably practicable after being notified of the matters to be incorporated
in such Prospectus supplement, Free Writing Prospectus or post-effective amendment; |
| (g) | furnish to each Participating Holder, without
charge, as many conformed copies as such Participating Holder may reasonably request of the
applicable Registration Statement and any amendment or post-effective amendment thereto,
including financial statements and schedules, all documents incorporated therein by reference
and all exhibits (including those incorporated by reference); |
| (h) | deliver to each Participating Holder, without
charge, as many copies of the applicable Prospectus (including each preliminary Prospectus),
any Free Writing Prospectus and any amendment or supplement thereto as such Participating
Holder may reasonably request (it being understood that the Company consents to the use of
such Prospectus, any Free Writing Prospectus and any amendment or supplement thereto by such
Participating in connection with the offering and sale of the Registrable Securities thereby)
and such other documents as such Participating Holder may reasonably request in order to
facilitate the disposition of the Registrable Securities by such Participating Holder; |
| (i) | on or prior to the date on which the Registration
Statement is declared effective, use its reasonable best efforts to register or qualify,
and cooperate with the Participating Holders and their respective counsel, in connection
with the registration or qualification of such Registrable Securities for offer and sale
under the securities or “Blue Sky” laws of each state and other jurisdiction
of the United States as any Participating Holder or their respective counsel reasonably request
in writing and do any and all other acts or things reasonably necessary or advisable to keep
such registration or qualification in effect for such period as required by this Agreement,
provided that the Company shall not be required to qualify generally to do business
in any jurisdiction where it is not then so qualified or to take any action which would subject
it to taxation or general service of process in any such jurisdiction where it is not then
so subject; |
| (j) | cooperate with the Participating Holders
to facilitate the timely preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends, and enable such Registrable
Securities to be in such denominations and registered in such names as may be requested at
least three (3) Business Days prior to any sale of Registrable Securities; |
| (k) | use its reasonable best efforts to cause
the Registrable Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary to enable
the seller or sellers thereof to consummate the disposition of such Registrable Securities; |
| (l) | enter into such customary agreements (including
underwriting and indemnification agreements) and take all such other actions as the Investor
reasonably requests in order to expedite or facilitate the registration and disposition of
such Registrable Securities; |
| (m) | obtain for delivery to the Participating
Holders an opinion or opinions from counsel for the Company dated the Effective Date of the
Registration Statement or, in the event of an underwritten offering, the date of the closing
under the underwriting agreement, in customary form, scope and substance, which opinions
shall be reasonably satisfactory to such Participating Holders or underwriters, as the case
may be, and their respective counsel; |
| (n) | cooperate with each Participating Holder
participating in the disposition of such Registrable Securities and their respective counsel
in connection with any filings required to be made with FINRA or any other securities regulatory
authority; |
| (o) | use its reasonable best efforts to comply
with all applicable securities laws and make available to its security holders, as soon as
reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of
the Securities Act and the rules and regulations promulgated thereunder; |
| (p) | provide and cause to be maintained a transfer
agent and registrar for all Registrable Securities covered by the applicable Registration
Statement from and after a date not later than the Effective Date of such Registration Statement; |
| (q) | use commercially reasonable efforts to cause
all Registrable Securities covered by the Registration Statement to be listed on each securities
exchange on which any of the Class A Ordinary Shares is then listed or quoted and on
each inter-dealer quotation system on which any of the Class A Ordinary Shares is then
quoted; |
| (r) | the
Company shall make available, during normal business hours, for inspection and review by
the Investor, advisors to and representatives of the Investor (who may or may not be affiliated
with the Investor and who are reasonably acceptable to the Company), all financial and other
records, all SEC Documents (as defined in the Warrant Agreement) and other filings with the
SEC, and all other corporate documents and properties of the Company as may be reasonably
necessary for the purpose of such review, and cause the Company’s officers, directors
and employees, within a reasonable time period, to supply all such information reasonably
requested by the Investor or any such representative, advisor or underwriter in connection
with such Registration Statement (including, without limitation, in response to all questions
and other inquiries reasonably made or submitted by any of them), prior to and from
time to time after the filing and effectiveness of the Registration Statement for the sole
purpose of enabling the Investor and such representatives, advisors and underwriters and
their respective accountants and attorneys to conduct initial and ongoing due diligence with
respect to the Company and the accuracy of such Registration Statement; and |
| (s) | with a view to making available to the Investor
the benefits of Rule 144 (or its successor rule) and any other rule or regulation
of the SEC that may at any time permit the Investor to sell Class A Ordinary Shares
or ADSs to the public without registration, the Company covenants and agrees to: (i) make
and keep public information available, as those terms are understood and defined in Rule 144,
until the earlier of (A) the date as all of the Registrable Securities may be sold without
restriction by the holders thereof pursuant to Rule 144 or any other rule of similar
effect or (B) such date as all of the Registrable Securities shall have been resold;
(ii) file with the SEC in a timely manner all reports and other documents required of
the Company under the Exchange Act; and (iii) furnish to the Investor upon request,
as long as the Investor owns any Registrable Securities, (A) a written statement by
the Company that it has complied with the reporting requirements of the Exchange Act, (B) a
copy of the Company’s most recent Annual Report on Form 20-F or Quarterly Report
on Form 6-K, and (C) such other information as may be reasonably requested in order
to avail the Investor of any rule or regulation of the SEC that permits the selling
of any such Registrable Securities without registration. |
All
such information made available or provided pursuant to this Section 2.5 shall be treated as confidential information and shall
not be disclosed by the Investor to any other Person other than the Investor and its Affiliate’s respective officers, directors,
employees, shareholders, partners, prospective buyers or financiers, accountants, consultants, legal counsel, investment bankers, advisors
and authorized agents (collectively, the “Investor Representatives”); provided, that, the Investor Representative
shall be informed that such confidential information is strictly confidential and shall be subject to confidentiality restrictions in
favor of the Investor with respect to the confidential information disclosed by the Investor to the Investor Representative. Notwithstanding
anything to the contrary herein, the foregoing restrictions shall not prevent the disclosure by the Investor of any information (x) that
is required to be disclosed by order of a court of competent jurisdiction, administrative body or other governmental authority, or by
subpoena, summons or legal process, or by law, rule or regulation or (y) that is publicly available (other than by a breach
of the Investor’s confidentiality obligations to the Company), provided that, to the extent permitted by Applicable Laws,
in the event the Investor or the Investor Representative is required to make a disclosure pursuant to clause (x) hereof, it shall
provide to the Board prompt notice of such disclosure and allow the Company, at the Company's expense, to undertake appropriate action
to prevent disclosure of, or to seek to obtain a protective order for, such information (other than any such disclosure required
by any administrative body or other governmental authority in the exercise of its regulatory or other oversight authority with respect
to the Investor or the Investor Representative). The confidentiality obligations herein shall, with respect to the Investor, expire on
the earlier of (i) with respect to each confidential information, third (3rd) anniversary of disclosure of such confidential information;
and (ii) second (2nd) anniversary of the date on which the Investor ceases to hold any Senior Preferred Shares, Class A Ordinary
Shares or ADSs. The Company shall hold in confidence and not make any disclosure of information concerning the Investor provided to the
Company unless (i) disclosure of such information is necessary to comply with federal or state securities laws, (ii) the disclosure
of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement or is otherwise required
to be disclosed in such Registration Statement pursuant to the Securities Act, (iii) the release of such information is ordered
pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction, or (iv) such
information has been made generally available to the public other than by disclosure in violation of this Agreement or any other Transaction
Document. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or
by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow
the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order
for, such information.
| 2.6 | Obligations of the Investor. |
| (a) | The Investor shall furnish in writing to
the Company such information regarding itself, the Registrable Securities held by it and
the intended method of disposition of the Registrable Securities held by it, as shall be
reasonably required to effect the registration of such Registrable Securities and shall execute
such documents in connection with such registration as the Company may reasonably request.
At least seven (7) Business Days prior to the first anticipated filing date of any Registration
Statement, the Company shall notify the Investor of the information the Company requires
from the Investor if the Investor elects to have any of its Registrable Securities included
in the Registration Statement. The Investor shall provide such information to the Company
at least three (3) Business Days prior to the first anticipated filing date of such
Registration Statement if the Investor elects to have any of its Registrable Securities included
in the Registration Statement. |
| (b) | The Investor, by its acceptance of the Registrable
Securities agrees to timely cooperate with the Company as reasonably requested by the Company
in connection with the preparation and filing of a Registration Statement hereunder, unless
the Investor has notified the Company in writing of its election to exclude all of its Registrable
Securities from such Registration Statement. |
| (c) | The
Investor agrees that, upon receipt of any notice from the Company of the happening of an
event pursuant to Section 2.5(d)(C), Section 2.5(d)(D) and Section 2.5(e) hereof,
the Investor will immediately discontinue disposition of Registrable Securities pursuant
to the Registration Statement covering such Registrable Securities, until the Investor is
advised by the Company that such dispositions may again be made. Notwithstanding anything
to the contrary in this Section 2.6(c), the Investor may dispose of the Class A
Ordinary Shares or ADSs it holds and the Company shall cause its transfer agent to deliver
unlegended Class A Ordinary Shares to a transferee of the Investor in connection with
any sale of Registrable Securities with respect to which the Investor has entered into a
contract for sale prior to the Investor’s receipt of a notice from the Company of the
happening of any event of the kind described in the first sentence of this Section 2.6(c),
and for which the Investor has not yet settled. |
| (d) | Notwithstanding the foregoing or anything
to the contrary contained in this Agreement, nothing in this Agreement shall require the
Investor to provide any non-public financial information with respect to itself or its Affiliates. |
| (a) | Indemnification by the Company. The
Company will indemnify and hold harmless the Investor and its officers, directors, members,
employees and agents, successors and assigns, and each other person, if any, who controls
the Investor 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 actions in respect
thereof) arise out of or are based upon: (i) any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement, any preliminary Prospectus
or final Prospectus, or any amendment or supplement thereof or any omission or alleged omission
to state a material fact required to be stated therein or necessary to make the statements
therein (in the case of any Prospectus or form of prospectus or supplement thereto, in light
of the circumstances under which they were made) not misleading; (ii) any “Blue
Sky” application or other document executed by the Company specifically for that purpose
or based upon written information furnished by the Company filed in any state or other jurisdiction
in order to qualify any or all of the Registrable Securities under the securities laws thereof
(any such application, document or information herein called a “Blue Sky Application”);
(iii) the omission or alleged omission to state in a Blue Sky Application a material
fact required to be stated therein or necessary to make the statements therein not misleading,
in light of the circumstances in which they were made; (iv) any violation by the Company
or its agents of any rule or regulation promulgated under the Securities Act applicable
to the Company or its agents and relating to action or inaction required of the Company in
connection with such registration; or (v) any failure to register or qualify the Registrable
Securities included in any such Registration Statement in any state where the Company or
its agents has affirmatively undertaken or agreed in writing that the Company will undertake
such registration or qualification on the Investor’s behalf and will reimburse the
Investor, and each such officer, director or member and each 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 or action; provided, however,
that the Company will not be liable in any such case if and to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission so made in conformity with information furnished
by the Investor or any such controlling person in writing specifically for use in such Registration
Statement or Prospectus. |
| (b) | Indemnification by the Investor.
The Investor agrees, severally but not jointly, to indemnify and hold harmless, to the fullest
extent permitted by Applicable Laws, the Company, its directors, officers, employees, shareholders
and each person who controls the Company (within the meaning of the Securities Act) against
any losses, claims, damages, liabilities and expense (including reasonable attorney fees)
resulting from (i) any untrue statement or alleged untrue statement of a material fact
or any omission or alleged omission of a material fact required to be stated in the Registration
Statement or Prospectus or preliminary Prospectus or amendment or supplement thereto or necessary
to make the statements therein (in the case of any Prospectus or form of prospectus or supplement
thereto, in light of the circumstances under which they were made) not misleading; (ii) the
omission or alleged omission to state in a Blue Sky Application a material fact required
to be stated therein or necessary to make the statements therein not misleading; or (iii) any
violation by the Investor or its agents of any rule or regulation promulgated under
the Securities Act applicable to the Investor or its agents and relating to action or inaction
required of the Investor under this Agreement, to the extent, but only to the extent that
such untrue statement or alleged untrue statement or omission or alleged omission is contained
in any information furnished in writing by the Investor to the Company specifically for inclusion
in such Registration Statement or Prospectus or amendment or supplement thereto. In no event
shall the liability of the Investor be greater in amount than the dollar amount of the proceeds
(net of all expense paid by the Investor in connection with any claim relating to this Section 2.7
and the amount of any damages the Investor has otherwise been required to pay by reason of
such untrue statement or omission) received by the Investor upon the sale of the Registrable
Securities included in the Registration Statement giving rise to such indemnification obligation. |
| (c) | Conduct of Indemnification Proceedings.
Any Person entitled to indemnification hereunder shall (i) give prompt notice to the
indemnifying party of any claim with respect to which it seeks indemnification and (ii) permit
such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory
to the indemnified party (provided, however, that such indemnified party shall,
at the expense of the indemnifying party, be entitled to counsel of its own choosing to monitor
such defense); provided that, subject to the preceding sentence, any Person entitled
to indemnification hereunder shall have the right to employ separate counsel and to participate
in the defense of such claim, but the fees and expenses of such counsel shall be at the expense
of such Person unless (a) the indemnifying party has agreed to pay such fees or expenses,
or (b) the indemnifying party shall have failed to assume the defense of such claim
and employ counsel reasonably satisfactory to such person or (c) in the reasonable judgment
of any such Person, based upon written advice of its counsel, a conflict of interest exists
between such person and the indemnifying party with respect to such claims (in which case,
if the Person notifies the indemnifying party in writing that such Person elects to employ
separate counsel at the expense of the indemnifying party, the indemnifying party shall not
have the right to assume the defense of such claim on behalf of such Person); and provided,
further, that the failure of any indemnified party to give notice as provided herein
shall not relieve the indemnifying party of its obligations hereunder, except to the extent
that such failure to give notice shall materially adversely affect the indemnifying party
in the defense of any such claim or litigation. It is understood that the indemnifying party
shall not, in connection with any proceeding in the same jurisdiction, be liable for fees
or expenses of more than one separate firm of attorneys at any time for all such indemnified
parties. No indemnifying party will, except with the consent of the indemnified party, consent
to entry of any judgment or enter into any settlement that does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified party of a release
from all liability in respect of such claim or litigation. |
| (d) | Contribution. If for any reason the
indemnification provided for in the preceding paragraphs (a) and (b) is unavailable
to an indemnified party or insufficient to hold it harmless, other than as expressly specified
therein, then the indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of such loss, claim, damage or liability in such proportion
as is appropriate to reflect the relative fault of the indemnified party and the indemnifying
party, as well as any other relevant equitable considerations. 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 not guilty of such fraudulent misrepresentation.
In no event shall the contribution obligation of a Holder of Registrable Securities be greater
in amount than the dollar amount of the proceeds (net of all expenses paid by such Holder
in connection with any claim relating to this Section 2.7 and the amount of any damages
such holder has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission) received by it upon the sale of the Registrable
Securities giving rise to such contribution obligation. |
2.8 Facilitation
of ADS Conversion.
| (a) | The Company acknowledges that the Investor
intends to convert the Senior Preferred Shares into Class A Ordinary Shares and deposit
such Class A Ordinary Shares with the Depositary in exchange for ADSs as soon as practicable
for future sale (the “ADS Conversion”). |
| (b) | At any time from and from time to time,
upon written request of the Investor, the Company shall promptly and in any event no later
than three (3) Trading Days following receipt of the Investor’s request, effect,
or cause the Depositary to effect, the ADS Conversion, if there is an effective Registration
Statement on file with the SEC covering the re-sale of the Investor’s Class A
Ordinary Shares (issued or issuable upon conversion of Senior Preferred Shares) or such Class A
Ordinary Shares may be re-sold without restriction by the Investor pursuant to Rule 144,
provided that, if requested by the Company, the Investor shall provide reasonable and timely
cooperation to facilitate the ADS Conversion to the extent reasonably required. |
| (c) | For
purposes of completing the ADS Conversion contemplated under Section 2.8(b) above,
the Company shall, at its sole cost and expense, take all necessary actions to cause the
ADS Conversion, including but not limited to directing its Depositary (including to provide
any consent or confirmation and to satisfy any other procedural or substantive requirements
under that certain deposit agreement dated June 27, 2018 among the Company, the Depositary
and the holders and beneficial owners of American depositary shares issued thereunder (as
amended, restated, supplemented or modified from time to time)), share registrar, transfer
agent and an outside counsel to take all necessary actions (including the removal of the
restrictive legend) in accordance with the procedures for conversion of Senior Preferred
Shares or Conversion Shares into ADSs. |
| 2.9 | Termination
of Registration Rights. The registration rights provided to the Holders under
Section 2 shall terminate in their entirety upon such time as there are no Registrable
Securities and all Senior Preferred Shares and Conversion Shares have been converted into
ADSs that are fully tradable. Notwithstanding the foregoing, Sections 2.4, 2.7 and 3 shall
survive the termination of such registration rights. |
| 3.1 | Governing
Law; Dispute Resolution. The provisions of Sections 10.8 (Governing Law) and 10.9 (Dispute
Resolution) of the Warrant Agreement shall be incorporated herein by reference and shall
apply as if set forth in full herein, mutatis mutandis. |
| 3.2 | Successors
and Assigns. Except as otherwise expressly provided herein, the provisions hereof shall
inure to the benefit of, and be binding upon, the successor and assigns of the parties hereto.
The Company may not assign its rights or obligations hereunder except with the prior written
consent of each Holder. Each Holder may assign their respective rights hereunder to any assignees
or successors of any of its Registrable Securities. |
| 3.3 | Entire
Agreement; Amendment. This Agreement and the other Transaction Documents constitute the
full and entire understanding and agreement between the parties with regard to the subjects
hereof and thereof. Any previous agreements among the parties relative to the specific subject
matter hereof are superseded by this Agreement. Neither this Agreement nor any provision
hereof may be amended, changed, waived, discharged or terminated other than by a written
instrument signed by the party against whom enforcement of any such amendment, change, waiver,
discharge or termination is sought. |
| 3.4 | Notices.
All notices and other communications provided for or permitted hereunder shall be made as
set forth in Section 10.1 (Notices) of the Warrant Agreement. |
| 3.5 | Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and effect and shall
in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to achieve the same or substantially
the same result as that contemplated by such term, provision, covenant or restriction. It
is hereby stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without including any
of such that may be hereafter declared invalid, illegal, void or unenforceable. |
| 3.6 | Headings.
The headings herein are for convenience only, do not constitute a part of this Agreement
and shall not be deemed to limit or affect any of the provisions hereof. |
| 3.7 | Counterparts.
This Agreement may be executed in two or more counterparts, all of which when taken together
shall be considered one and the same agreement and shall become effective when counterparts
have been signed by each party and delivered to each other party, it being understood that
the parties need not sign the same counterpart. In the event that any signature is delivered
by facsimile transmission or by e-mail delivery of a “.pdf” format data file,
such signature shall create a valid and binding obligation of the party executing (or on
whose behalf such signature is executed) with the same force and effect as if such facsimile
or “.pdf” signature page were an original thereof. The parties irrevocably
and unreservedly agree that this Agreement may be executed by way of electronic signatures
and the parties agree that this Agreement, or any part thereof, shall not be challenged or
denied any legal effect, validity and/or enforceability solely on the ground that it is in
the form of an electronic record. |
| 3.8 | Delays
or Omissions. It is agreed that no delay or omission to exercise any right, power or
remedy accruing to any party upon any breach or default of any other party under this Agreement
shall impair any such right, power or remedy, nor shall it be construed to be a waiver of
any such breach or default, or any acquiescence therein, or of any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver
of any other breach or default theretofore or thereafter occurring. It is further agreed
that any waiver, permit, consent or approval of any kind or character of any breach or default
under this Agreement, or any waiver of any provisions or conditions of this Agreement must
be in writing and shall be effective only to the extent specifically set forth in writing,
and that all remedies, either under this Agreement, by law or otherwise, shall be cumulative
and not alternative. |
| 3.9 | Consents.
Any permission, consent, or approval of any kind or character under this Agreement shall
be in writing and shall be effective only to the extent specifically set forth in such writing. |
| 3.10 | SPECIFIC
PERFORMANCE. THE PARTIES HERETO AGREE THAT IRREPARABLE DAMAGE WOULD OCCUR IN THE EVENT
THAT ANY OF THE PROVISIONS OF THIS AGREEMENT WERE NOT PERFORMED IN ACCORDANCE WITH ITS SPECIFIC
INTENT OR WERE OTHERWISE BREACHED. IT IS ACCORDINGLY AGREED THAT THE PARTIES SHALL BE ENTITLED
TO AN INJUNCTION OR INJUNCTIONS, WITHOUT BOND, TO PREVENT OR CURE BREACHES OF THE PROVISIONS
OF THIS AGREEMENT AND TO ENFORCE SPECIFICALLY THE TERMS AND PROVISIONS HEREOF, THIS BEING
IN ADDITION TO ANY OTHER REMEDY TO WHICH THEY MAY BE ENTITLED BY LAW OR EQUITY, AND
ANY PARTY SUED FOR BREACH OF THIS AGREEMENT EXPRESSLY WAIVES ANY DEFENSE THAT A REMEDY IN
DAMAGES WOULD BE ADEQUATE. |
| 3.11 | Joinder Agreement. Any Person
who becomes a shareholder of the Company pursuant to the Warrant Agreement may, by signing
and delivering a Joinder Agreement to this Agreement in the form attached hereto as Annex
B, join and become a party to this Agreement as an “Investor” with the same force
and effect as if it were originally a party hereto. After any party joins this Agreement
in accordance with the foregoing sentence, the Company acknowledges that the obligations
of each Investor under this Agreement are several and not joint with the obligations of any
other Investor(s), and no Investor shall be responsible in any way for the performance of
the obligations of any other Investor(s) under this Agreement. The decision of each
Investor to enter into this Agreement has been made by such Investor independently of the
other Investor(s). The Company further acknowledges that nothing contained in this Agreement,
and no action taken by any Investor pursuant hereto, shall be deemed to constitute the Investors
as a partnership, an association, a joint venture or any other kind of entity, or create
a presumption that the Investors are in any way acting in concert or as a group with respect
to such obligations or the transactions contemplated hereby. Each Investor shall be entitled
to independently protect and enforce its rights, including without limitation, the rights
arising out of this Agreement, and it shall not be necessary for the other Investor(s) to
be joined as an additional party in any proceeding for such purpose. |
| 3.12 | Construction
of Agreement. No provision of this Agreement shall be construed against either party
as the drafter thereof. |
| 3.13 | Section References.
Unless otherwise stated, any reference contained herein to a Section or subsection refers
to the provisions of this Agreement. |
| 3.14 | Variations
of Pronouns. All pronouns and all variations thereof shall be deemed to refer to the
masculine, feminine, or neuter, singular or plural, as the context in which they are used
may require. |
[Remainder of Page Intentionally Left
Blank; Signature Pages Follow]
IN WITNESS WHEREOF, the parties
have caused this Registration Rights Agreement to be duly executed and delivered by their proper and duly authorized officers as of the
day and year first written above.
| |
UXIN LIMITED |
| |
|
| |
By: |
/s/
Kun DAI |
| |
|
Name: |
Kun DAI (戴琨) |
| |
|
Title: |
Director |
[Signature Page to
Registration Rights Agreement]
IN WITNESS WHEREOF, the parties
have caused this Registration Rights Agreement to be duly executed and delivered by their proper and duly authorized officers as of the
day and year first written above.
| |
INVESTOR: |
| |
|
| |
ASTRAL SUCCESS LIMITED |
| |
|
| |
By: |
/s/
Erhai Liu |
| |
|
Name: |
Erhai Liu |
| |
|
Title: |
Authorized Signatory |
[Signature Page to
Registration Rights Agreement]
Annex A
PLAN OF DISTRIBUTION
We are registering the Class A
Ordinary Shares and/or ADSs issued to the selling shareholders to permit the resale of these Class A Ordinary Shares and/or ADSs
by the holders of the Class A Ordinary Shares and/or ADSs from time to time after the date of this prospectus. We will not receive
any of the proceeds from the sale by the selling shareholders of the Class A Ordinary Shares and/or ADSs. We will bear all fees
and expenses incident to our obligation to register the Class A Ordinary Shares and/or ADSs.
The selling shareholders
may sell all or a portion of the Class A Ordinary Shares and/or ADSs beneficially owned by them and offered hereby (the “Selling
Securities”) from time to time directly or through one or more underwriters, broker-dealers or agents. If the Class A
Ordinary Shares and/or ADSs are sold through underwriters or broker-dealers, the selling shareholders will be responsible for underwriting
discounts or commissions or agent’s commissions. The Class A Ordinary Shares and/or ADSs may be sold on any national securities
exchange or quotation service on which the securities may be listed or quoted at the time of sale, in the over-the-counter market or
in transactions otherwise than on these exchanges or systems or in the over-the-counter market and in one or more transactions at fixed
prices, at prevailing market prices at the time of the sale, at varying prices determined at the time of sale, or at negotiated prices.
The selling shareholders may use any one or more of the following methods when selling such Class A Ordinary Shares and/or ADSs:
| ● | ordinary
brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
| ● | block
trades in which the broker-dealer will attempt to sell the Class A Ordinary Shares or
ADSs as agent but may position and resell a portion of the block as principal to facilitate
the transaction; |
| ● | purchases
by a broker-dealer as principal and resale by the broker-dealer for its account; |
| ● | an
exchange distribution in accordance with the rules of the applicable exchange; |
| ● | privately
negotiated transactions; |
| ● | settlement
of short sales entered into after the Effective Date of the registration statement of which
this prospectus is a part; |
| ● | broker-dealers
may agree with the selling shareholders to sell a specified number of such Selling Securities
at a stipulated price per security; |
| ● | through
the writing or settlement of options or other hedging transactions, whether such options
are listed on an options exchange or otherwise; |
| ● | a
combination of any such methods of sale; and |
| ● | any
other method permitted pursuant to Applicable Laws. |
The selling shareholders
also may resell all or a portion of the Class A Ordinary Shares or ADSs in open market transactions in reliance upon Rule 144
under the Securities Act, as permitted by that rule, or Section 4(1) under the Securities Act, if available, rather than under
this prospectus, provided that they meet the criteria and conform to the requirements of those provisions.
Broker-dealers engaged by
the selling shareholders may arrange for other broker-dealers to participate in sales. If the selling shareholders effect such transactions
by selling the Selling Securities to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may
receive commissions in the form of discounts, concessions or commissions from the selling shareholders or commissions from purchasers
of the Selling Securities for whom they may act as agent or to whom they may sell as principal. Such commissions will be in amounts to
be negotiated, but, except as set forth in a supplement to this prospectus, in the case of an agency transaction will not be in excess
of a customary brokerage commission in compliance with FINRA Rule 5110.
In connection with sales
of the Class A Ordinary Shares or ADSs or otherwise, the selling shareholders may enter into hedging transactions with broker-dealers
or other financial institutions, which may in turn engage in short sales of the Selling Securities in the course of hedging in positions
they assume. The selling shareholders may also sell Selling Securities short and if such short sale shall take place after the date that
this Registration Statement is declared effective by the Commission, the selling shareholders may deliver Selling Securities covered
by this prospectus to close out short positions and to return borrowed shares in connection with such short sales. The selling shareholders
may also loan or pledge Selling Securities to broker-dealers that in turn may sell such shares, to the extent permitted by Applicable
Laws. The selling shareholders may also enter into option or other transactions with broker-dealers or other financial institutions or
the creation of one or more derivative securities which require the delivery to such broker-dealer or other financial institution of
shares offered by this prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this prospectus
(as supplemented or amended to reflect such transaction). Notwithstanding the foregoing, the selling shareholders have been advised that
they may not use shares registered on this registration statement to cover short sales of our ordinary shares made prior to the date
the registration statement, of which this prospectus forms a part, has been declared effective by the SEC.
The selling shareholders
may, from time to time, pledge or grant a security interest in some or all of the warrants or Class A Ordinary Shares or ADSs owned
by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the
Selling Securities from time to time pursuant to this prospectus or any amendment to this prospectus under Rule 424(b)(3) or
other applicable provision of the Securities Act of 1933, as amended, amending, if necessary, the list of selling shareholders to include
the pledgee, transferee or other successors in interest as selling shareholders under this prospectus. The selling shareholders also
may transfer and donate the Class A Ordinary Shares or ADSs in other circumstances in which case the transferees, donees, pledgees
or other successors in interest will be the selling beneficial owners for purposes of this prospectus.
The selling shareholders
and any broker-dealer or agents participating in the distribution of the Selling Securities may be deemed to be “underwriters”
within the meaning of Section 2(11) of the Securities Act in connection with such sales. In such event, any commissions paid, or
any discounts or concessions allowed to, any such broker-dealer or agent and any profit on the resale of the shares purchased by them
may be deemed to be underwriting commissions or discounts under the Securities Act. Selling Shareholders who are “underwriters”
within the meaning of Section 2(11) of the Securities Act will be subject to the prospectus delivery requirements of the Securities
Act and may be subject to certain statutory liabilities of, including but not limited to, Sections 11, 12 and 17 of the Securities
Act and Rule 10b-5 under the Securities Exchange Act of 1934, as amended, or the Exchange Act.
Each selling shareholder
has informed the Company that it is not a registered broker-dealer and does not have any written or oral agreement or understanding,
directly or indirectly, with any person to distribute the ordinary shares. Upon the Company being notified in writing by a selling shareholder
that any material arrangement has been entered into with a broker-dealer for the sale of ordinary shares through a block trade, special
offering, exchange distribution or secondary distribution or a purchase by a broker or dealer, a supplement to this prospectus will be
filed, if required, pursuant to Rule 424(b) under the Securities Act, disclosing (i) the name of each such selling shareholder
and of the participating broker-dealer(s), (ii) the number of shares involved, (iii) the price at which such Class A Ordinary
Shares or ADSs were sold, (iv) the commissions paid or discounts or concessions allowed to such broker-dealer(s), where applicable,
(v) that such broker-dealer(s) did not conduct any investigation to verify the information set out or incorporated by reference
in this prospectus, and (vi) other facts material to the transaction. In no event shall any broker-dealer receive fees, commissions
and markups, which, in the aggregate, would exceed eight percent (8%).
Under the securities laws
of some states, the Selling Securities may be sold in such states only through registered or licensed brokers or dealers. In addition,
in some states the Selling Securities may not be sold unless such shares have been registered or qualified for sale in such state or
an exemption from registration or qualification is available and is complied with.
There can be no assurance
that any selling shareholder will sell any or all of the Class A Ordinary Shares or ADSs registered pursuant to the shelf registration
statement, of which this prospectus forms a part.
Each selling shareholder
and any other person participating in such distribution will be subject to applicable provisions of the Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder, including, without limitation, Regulation M of the Exchange Act, which
may limit the timing of purchases and sales of any of the Selling Securities by the selling shareholder and any other participating person.
Regulation M may also restrict the ability of any person engaged in the distribution of the Selling Securities to engage in market-making
activities with respect to the Selling Securities. All of the foregoing may affect the marketability of the Selling Securities and the
ability of any person or entity to engage in market-making activities with respect to the Selling Securities.
We will pay all expenses
of the registration of the Class A Ordinary Shares or ADSs pursuant to the registration rights agreement, including, without limitation,
Securities and Exchange Commission filing fees and expenses of compliance with state securities or “blue sky” laws; provided,
however, that each selling shareholder will pay all underwriting discounts and selling commissions, if any, and any legal expenses
incurred by it. We will indemnify the selling shareholders against certain liabilities, including some liabilities under the Securities
Act, in accordance with a registration rights agreement, or the selling shareholders will be entitled to contribution. We may be indemnified
by the selling shareholders against civil liabilities, including liabilities under the Securities Act, that may arise from any written
information furnished to us by the selling shareholders specifically for use in this prospectus, in accordance with the related registration
rights agreements, or we may be entitled to contribution.
We have agreed with the selling
shareholders to keep the registration statement of which this prospectus constitutes a part effective until the earlier of (1) such
time as all of the securities covered by this prospectus have been disposed of pursuant to and in accordance with the registration statement,
or (2) the date on which all of the securities may be sold without restriction pursuant to Rule 144 of the Securities Act.
Annex B
FORM OF JOINDER AGREEMENT
JOINDER AGREEMENT
The
undersigned is executing and delivering this Joinder Agreement dated [*], 2023, pursuant to the Registration Rights Agreement by and
between Uxin Limited, a company organized and existing under the laws of the Cayman Islands (the “Company”)
and Astral Success Limited, a company limited by shares incorporated under the laws of British Virgin Islands dated as of August 17,
2023 (the “Registration Rights Agreement”).
Capitalized terms used but not defined in this
Joinder Agreement shall have their meanings in the Registration Rights Agreement.
The undersigned hereby acknowledges, agrees and
confirms that, by its execution of this Joinder Agreement, it shall be deemed to be a party to the Registration Rights Agreement as of
the date hereof and shall have all of the rights and obligations of the “Investor” thereunder, as the case may be, as if
it had executed the Registration Rights Agreement.
The undersigned hereby ratifies, as of the date
hereof, and agrees to be bound by, all of the terms, provisions and conditions contained in the Registration Rights Agreement.
IN WITNESS WHEREOF, the undersigned has caused
this Joinder Agreement to be duly executed and delivered as of the date first written above.
[Name of Investor]
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