UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 8)*
VNET
Group, Inc.
(Name of Issuer)
Class A
Ordinary Shares, Par Value US$0.00001 Per Share
(Title of Class of Securities)
G91458 102**
(CUSIP Number)
Mr. Sheng
Chen
Guanjie Building, Southeast 1st Floor, 10# Jiuxianqiao East Road
Chaoyang District, Beijing 100016
People’s Republic of China
Phone: (+86) 10 8456-2121
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
June 28, 2024
(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. x
Note: Schedules filed in paper format shall include a signed
original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.
*This statement on Schedule 13D constitutes Amendment No.8 to the
initial Schedule 13D (the “Original Schedule 13D”) filed on April 8, 2022 on behalf of each of Mr. Sheng Chen and
GenTao Capital Limited, as amended by the Amendment No.1 filed on September 14, 2022 (the “Amendment No.1”), Amendment
No.2 filed on February 17, 2023 (the “Amendment No.2”), Amendment No.3 filed on July 12, 2023 (the “Amendment
No.3”), Amendment No.4 filed on August 1, 2023 (the “Amendment No.4”), Amendment No. 5 filed on November 16,
2023 (the “Amendment No. 5”), Amendment No. 6 filed on December 28, 2023 (the “Amendment No. 6”)
and Amendment No. 7 filed on February 6, 2024 (the “Amendment No. 7”, and together with the Original Schedule 13D,
Amendment No.1, Amendment No.2, Amendment No.3, Amendment No.4, Amendment No. 5, Amendment No. 6 and Amendment No. 7, the “Original
13D Filings”), with respect to ordinary shares (“Ordinary Shares”), comprising Class A ordinary shares,
par value of $0.00001 per share (“Class A Ordinary Shares”), Class B ordinary shares, par value of $0.00001 per share
(“Class B Ordinary Shares”), and Class C ordinary shares, par value of $0.00001 per share (“Class C Ordinary
Shares”) of VNET Group, Inc., a Cayman Islands company (“Issuer”).
**This CUSIP number applies to the Issuer’s American Depositary
Shares (“ADSs”), each representing six Class A Ordinary Shares of the Issuer.
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).
1. |
NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS (ENTITIES ONLY)
Sheng Chen |
2. |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(see instructions)
(a) ¨
(b) ¨ |
3. |
SEC USE ONLY
|
4. |
SOURCE OF FUNDS (see instructions)
PF, OO , SC |
5. |
CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) ¨
|
6. |
CITIZENSHIP OR PLACE OF ORGANIZATION
People’s Republic of China |
|
7. |
SOLE
VOTING POWER |
|
|
|
NUMBER OF |
|
98,440,275
(1) |
SHARES |
8. |
SHARED VOTING POWER |
BENEFICIALLY |
|
|
OWNED BY |
|
0 |
EACH |
9. |
SOLE DISPOSITIVE POWER |
REPORTING |
|
|
PERSON WITH: |
|
98,440,275
(1) |
|
10. |
SHARED DISPOSITIVE POWER |
|
|
|
|
|
0 |
11. |
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
|
|
|
98,440,275
(1) |
12. |
CHECK BOX IF THE AGGREGATE
AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions) ¨ |
|
|
13. |
PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11) |
|
|
|
6.1%
(2) (representing 18.9% of the total outstanding voting power (3)) |
14. |
TYPE OF REPORTING PERSON
(see instructions) |
|
|
|
IN |
(1) Representing (i) 33,628,927 Class A Ordinary Shares
held by GenTao Capital Limited (“GenTao”) (including 33,628,926 Class A Ordinary Shares represented by 5,604,821 ADSs),
(ii) 19,670,117 Class B Ordinary Shares held by Fast Horse Technology Limited (“Fast Horse”), (iii) 8,087,875
Class B Ordinary Shares held by Sunrise Corporate Holding Ltd. (“Sunrise”), (iv) four Class A Ordinary
Shares, 769,486 Class B Ordinary Shares and 60,000 Class C Ordinary Shares held by Personal Group Limited (“Personal
Group”), (iv) 1,479,660 Class A Ordinary Shares issuable under Mr. Sheng Chen’s restricted share units at his
election, and (v) 34,744,206 Class A Ordinary Shares acquired by Beacon Capital Group Inc. (“Beacon”) from the vesting
of performance-based restricted share units on February 2, 2024 (these units were granted to Mr. Sheng Chen and issued to Beacon at his
direction). Mr. Sheng Chen is the sole and direct shareholder of GenTao, Fast Horse, Sunrise, Personal Group and Beacon and may
be deemed to have beneficial ownership of the shares held by them.
(2) Calculation based on 1,602,740,778 outstanding Ordinary Shares
as a single class, being the sum of (i) 1,570,479,395 outstanding Class A Ordinary Shares (excluding treasury shares and Class A
Ordinary Shares in the form of ADSs that are reserved for issuance upon the exercise of share incentive awards), (ii) 30,721,723
outstanding Class B Ordinary Shares, (iii) 60,000 outstanding Class C Ordinary Shares, (iv) no outstanding Class D Ordinary
Share, par value of $0.00001 per share (“Class D Ordinary Shares”) of the Issuer, and (v) 1,479,660 Class A
Ordinary Shares issuable under Mr. Sheng Chen’s restricted share units at his election, assuming conversion of all outstanding
Class B Ordinary Shares and Class C Ordinary Shares into Class A Ordinary Share. Each Class B Ordinary Share or each
Class C Ordinary Share is convertible into one Class A Ordinary Share at any time by the holder thereof. Class A Ordinary
Shares are not convertible into Class B Ordinary Shares or Class C Ordinary Shares under any circumstances.
(3) Each Class A Ordinary Share is entitled to one vote,
each Class B Ordinary Share is entitled to ten votes, each Class C Ordinary Shares is entitled to one vote and each Class D
Ordinary Share is entitled to 500 votes, except that the Issuer shall only proceed with certain corporate matters with the written consent
of the holders holding a majority of the issued and outstanding Class C Ordinary Shares or with the sanction of a special resolution
passed at a separate meeting of the holders of the issued and outstanding Class C Ordinary Shares.
1. |
NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS (ENTITIES ONLY)
GenTao Capital Limited |
2. |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(see instructions)
(a) ¨
(b) ¨ |
3. |
SEC USE ONLY
|
4. |
SOURCE OF FUNDS (see instructions)
AF, OO |
5. |
CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)¨
|
6. |
CITIZENSHIP OR PLACE OF ORGANIZATION
British Virgin Islands |
|
7. |
SOLE
VOTING POWER |
|
|
|
|
|
33,628,927(1) |
NUMBER OF |
8. |
SHARED VOTING POWER |
SHARES |
|
|
BENEFICIALLY |
|
0 |
OWNED BY |
9. |
SOLE DISPOSITIVE POWER |
EACH |
|
|
REPORTING |
|
33,628,927(1) |
PERSON WITH: |
10. |
SHARED DISPOSITIVE POWER |
|
|
|
|
|
0 |
11. |
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
|
|
|
33,628,927(1) |
12. |
CHECK BOX IF THE AGGREGATE
AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions) ¨ |
|
|
13. |
PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11) |
|
|
|
2.1%(2) (representing
1.8% of the total outstanding voting power (3)) |
14. |
TYPE OF REPORTING PERSON
(see instructions) |
|
|
|
CO |
(1) Representing 33,628,927 Class A Ordinary Shares held
by GenTao including 33,628,926 Class A Ordinary Shares represented by 5,604,821 ADSs.
(2) Calculation based on 1,602,740,778 outstanding Ordinary Shares
as a single class, being the sum of (i) 1,570,479,395 outstanding Class A Ordinary Shares (excluding treasury shares and Class A
Ordinary Shares in the form of ADSs that are reserved for issuance upon the exercise of share incentive awards), (ii) 30,721,723 outstanding
Class B Ordinary Shares, (iii) 60,000 outstanding Class C Ordinary Shares, (iv) no outstanding Class D Ordinary Share,
and (v) 1,479,660 Class A Ordinary Shares issuable under Mr. Sheng Chen’s restricted share units at his election,
assuming conversion of all outstanding Class B Ordinary Shares and Class C Ordinary Shares into Class A Ordinary Share.
Each Class B Ordinary Share or each Class C Ordinary Share is convertible into one Class A Ordinary Share at any time
by the holder thereof. Class A Ordinary Shares are not convertible into Class B Ordinary Shares or Class C Ordinary Shares
under any circumstances.
(3) Each Class A Ordinary Share is entitled to one vote,
each Class B Ordinary Share is entitled to ten votes, each Class C Ordinary Shares is entitled to one vote and each Class D
Ordinary Share is entitled to 500 votes, except that the Issuer shall only proceed with certain corporate matters with the written consent
of the holders holding a majority of the issued and outstanding Class C Ordinary Shares or with the sanction of a special resolution
passed at a separate meeting of the holders of the issued and outstanding Class C Ordinary Shares.
1. |
NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS (ENTITIES ONLY)
Fast Horse Technology Limited |
2. |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(see instructions)
(a) ¨
(b) ¨ |
3. |
SEC USE ONLY
|
4. |
SOURCE OF FUNDS (see instructions)
AF, OO |
5. |
CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) ¨
|
6. |
CITIZENSHIP OR PLACE OF ORGANIZATION
British Virgin Islands |
|
7. |
SOLE
VOTING POWER |
|
|
|
|
|
19,670,117
(1) |
NUMBER OF |
8. |
SHARED VOTING POWER |
SHARES |
|
|
BENEFICIALLY |
|
0 |
OWNED BY |
9. |
SOLE DISPOSITIVE POWER |
EACH |
|
|
REPORTING |
|
19,670,117
(1) |
PERSON WITH: |
10. |
SHARED DISPOSITIVE POWER |
|
|
|
|
|
0 |
11. |
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
|
|
|
19,670,117
(1) |
12. |
CHECK BOX IF THE AGGREGATE
AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions) ¨ |
|
|
13. |
PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11) |
|
|
|
1.2%(2) (representing
10.5% of the total outstanding voting power (3)) |
14. |
TYPE OF REPORTING PERSON
(see instructions) |
|
|
|
CO |
(1) Representing 19,670,117 Class B Ordinary Shares held
by Fast Horse.
(2) Calculation based on 1,602,740,778 outstanding Ordinary Shares
as a single class, being the sum of (i) 1,570,479,395 outstanding Class A Ordinary Shares (excluding treasury shares and Class A
Ordinary Shares in the form of ADSs that are reserved for issuance upon the exercise of share incentive awards), (ii) 30,721,723 outstanding
Class B Ordinary Shares, (iii) 60,000 outstanding Class C Ordinary Shares, (iv) no outstanding Class D Ordinary Share,
and (v) 1,479,660 Class A Ordinary Shares issuable under Mr. Sheng Chen’s restricted share units at his election, assuming
conversion of all outstanding Class B Ordinary Shares and Class C Ordinary Shares into Class A Ordinary Share. Each Class B
Ordinary Share or each Class C Ordinary Share is convertible into one Class A Ordinary Share at any time by the holder thereof.
Class A Ordinary Shares are not convertible into Class B Ordinary Shares or Class C Ordinary Shares under any circumstances.
(3) Each Class A Ordinary Share is entitled to one vote,
each Class B Ordinary Share is entitled to ten votes, each Class C Ordinary Shares is entitled to one vote and each Class D
Ordinary Share is entitled to 500 votes, except that the Issuer shall only proceed with certain corporate matters with the written consent
of the holders holding a majority of the issued and outstanding Class C Ordinary Shares or with the sanction of a special resolution
passed at a separate meeting of the holders of the issued and outstanding Class C Ordinary Shares.
1. |
NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS (ENTITIES ONLY)
Sunrise Corporate Holding Ltd. |
2. |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(see instructions)
(a) ¨
(b) ¨ |
3. |
SEC USE ONLY
|
4. |
SOURCE OF FUNDS (see instructions)
AF, OO |
5. |
CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) ¨
|
6. |
CITIZENSHIP OR PLACE OF ORGANIZATION
British Virgin Islands |
|
7. |
SOLE
VOTING POWER |
|
|
|
|
|
8,087,875(1) |
NUMBER OF |
8. |
SHARED VOTING POWER |
SHARES |
|
|
BENEFICIALLY |
|
0 |
OWNED BY |
9. |
SOLE DISPOSITIVE POWER |
EACH |
|
|
REPORTING |
|
8,087,875(1) |
PERSON WITH: |
10. |
SHARED DISPOSITIVE POWER |
|
|
|
|
|
0 |
11. |
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
|
|
|
8,087,875(1) |
12. |
CHECK BOX IF THE AGGREGATE
AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions) ¨ |
|
|
13. |
PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11) |
|
|
|
0.5%(2) (representing
4.3% of the total outstanding voting power (3)) |
14. |
TYPE OF REPORTING PERSON
(see instructions) |
|
|
|
CO |
(1) Representing 8,087,875 Class B Ordinary Shares.
(2) Calculation based on 1,602,740,778 outstanding Ordinary Shares
as a single class, being the sum of (i) 1,570,479,395 outstanding Class A Ordinary Shares (excluding treasury shares and Class A
Ordinary Shares in the form of ADSs that are reserved for issuance upon the exercise of share incentive awards), (ii) 30,721,723 outstanding
Class B Ordinary Shares, (iii) 60,000 outstanding Class C Ordinary Shares, (iv) no outstanding Class D Ordinary Share,
and (v) 1,479,660 Class A Ordinary Shares issuable under Mr. Sheng Chen’s restricted share units at his election, assuming
conversion of all outstanding Class B Ordinary Shares and Class C Ordinary Shares into Class A Ordinary Share. Each Class B
Ordinary Share or each Class C Ordinary Share is convertible into one Class A Ordinary Share at any time by the holder thereof.
Class A Ordinary Shares are not convertible into Class B Ordinary Shares or Class C Ordinary Shares under any circumstances.
(3) Each Class A Ordinary Share is entitled to one vote, each
Class B Ordinary Share is entitled to ten votes, each Class C Ordinary Shares is entitled to one vote and each Class D Ordinary
Share is entitled to 500 votes, except that the Issuer shall only proceed with certain corporate matters with the written consent of
the holders holding a majority of the issued and outstanding Class C Ordinary Shares or with the sanction of a special resolution
passed at a separate meeting of the holders of the issued and outstanding Class C Ordinary Shares.
1. |
NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS (ENTITIES ONLY)
Personal Group Limited |
2. |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(see instructions)
(a) ¨
(b) ¨ |
3. |
SEC USE ONLY
|
4. |
SOURCE OF FUNDS (see instructions)
AF, OO |
5. |
CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) ¨
|
6. |
CITIZENSHIP OR PLACE OF ORGANIZATION
British Virgin Islands |
|
7. |
SOLE
VOTING POWER |
|
|
|
|
|
829,490(1) |
NUMBER OF |
8. |
SHARED VOTING POWER |
SHARES |
|
|
BENEFICIALLY |
|
0 |
OWNED BY |
9. |
SOLE DISPOSITIVE POWER |
EACH |
|
|
REPORTING |
|
829,490(1) |
PERSON WITH: |
10. |
SHARED DISPOSITIVE POWER |
|
|
|
|
|
0 |
11. |
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
|
|
|
829,490(1) |
12. |
CHECK BOX IF THE AGGREGATE
AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions) ¨ |
|
|
13. |
PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11) |
|
|
|
0.1%(2) (representing
0.4% of the total outstanding voting power (3)) |
14. |
TYPE OF REPORTING PERSON
(see instructions) |
|
|
|
CO |
(1) Representing four Class A Ordinary Shares, 769,486 Class B
Ordinary Shares, and 60,000 Class C Ordinary Shares held by Personal Group.
(2) Calculation based on 1,602,740,778 outstanding Ordinary Shares
as a single class, being the sum of (i) 1,570,479,395 outstanding Class A Ordinary Shares (excluding treasury shares and Class A
Ordinary Shares in the form of ADSs that are reserved for issuance upon the exercise of share incentive awards), (ii) 30,721,723 outstanding
Class B Ordinary Shares, (iii) 60,000 outstanding Class C Ordinary Shares, (iv) no outstanding Class D Ordinary Share,
and (v) 1,479,660 Class A Ordinary Shares issuable under Mr. Sheng Chen’s restricted share units at his election, assuming
conversion of all outstanding Class B Ordinary Shares and Class C Ordinary Shares into Class A Ordinary Share. Each Class B
Ordinary Share or each Class C Ordinary Share is convertible into one Class A Ordinary Share at any time by the holder thereof.
Class A Ordinary Shares are not convertible into Class B Ordinary Shares or Class C Ordinary Shares under any circumstances.
(3) Each Class A Ordinary Share is entitled to one vote,
each Class B Ordinary Share is entitled to ten votes, each Class C Ordinary Shares is entitled to one vote and each Class D
Ordinary Share is entitled to 500 votes, except that the Issuer shall only proceed with certain corporate matters with the written consent
of the holders holding a majority of the issued and outstanding Class C Ordinary Shares or with the sanction of a special resolution
passed at a separate meeting of the holders of the issued and outstanding Class C Ordinary Shares.
1. |
NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS (ENTITIES ONLY)
Beacon Capital Group Inc. |
2. |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(see instructions)
(a) ¨
(b) ¨ |
3. |
SEC USE ONLY
|
4. |
SOURCE OF FUNDS (see instructions)
AF, OO |
5. |
CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) ¨
|
6. |
CITIZENSHIP OR PLACE OF ORGANIZATION
British Virgin Islands |
|
7. |
SOLE
VOTING POWER |
|
|
|
|
|
34,744,206
(1) |
NUMBER OF |
8. |
SHARED VOTING POWER |
SHARES |
|
|
BENEFICIALLY |
|
0 |
OWNED BY |
9. |
SOLE DISPOSITIVE POWER |
EACH |
|
|
REPORTING |
|
34,744,206
(1) |
PERSON WITH: |
10. |
SHARED DISPOSITIVE POWER |
|
|
|
|
|
0 |
11. |
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
|
|
|
34,744,206
(1) |
12. |
CHECK BOX IF THE AGGREGATE
AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions) ¨ |
|
|
13. |
PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11) |
|
|
|
2.2%(2) (representing
1.8% of the total outstanding voting power (3)) |
14. |
TYPE OF REPORTING PERSON
(see instructions) |
|
|
|
CO |
(1) Representing 34,744,206 Class A Ordinary Shares acquired
by Beacon.
(2) Calculation based on 1,602,740,778 outstanding Ordinary Shares
as a single class, being the sum of (i) 1,570,479,395 outstanding Class A Ordinary Shares (excluding treasury shares and Class A
Ordinary Shares in the form of ADSs that are reserved for issuance upon the exercise of share incentive awards), (ii) 30,721,723 outstanding
Class B Ordinary Shares, (iii) 60,000 outstanding Class C Ordinary Shares, (iv) no outstanding Class D Ordinary Share,
and (v) 1,479,660 Class A Ordinary Shares issuable under Mr. Sheng Chen’s restricted share units at his election, assuming
conversion of all outstanding Class B Ordinary Shares and Class C Ordinary Shares into Class A Ordinary Share. Each Class B
Ordinary Share or each Class C Ordinary Share is convertible into one Class A Ordinary Share at any time by the holder thereof.
Class A Ordinary Shares are not convertible into Class B Ordinary Shares or Class C Ordinary Shares under any circumstances.
(3) Each Class A Ordinary Share is entitled to one vote,
each Class B Ordinary Share is entitled to ten votes, each Class C Ordinary Shares is entitled to one vote and each Class D
Ordinary Share is entitled to 500 votes, except that the Issuer shall only proceed with certain corporate matters with the written consent
of the holders holding a majority of the issued and outstanding Class C Ordinary Shares or with the sanction of a special resolution
passed at a separate meeting of the holders of the issued and outstanding Class C Ordinary Shares.
CUSIP No. G91458 102
Pursuant to Rule 13d-2 promulgated under the Act, this amendment to
Schedule 13D (this “Amendment No.8”) amends and supplements the Original 13D Filings. Except as specifically provided
herein, this Amendment No.8 does not modify any of the information previously reported in the Original 13D Filings. All capitalized terms
used herein which are not otherwise defined herein have the meanings given to such terms in the Original 13D Filings.
Item
6. |
Contracts,
Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. |
Item 6 is further supplemented by the following.
Existing Loan Facility
Prior to the date of event which requires filing
of this Amendment No.8, Bold Ally (Cayman) Limited (the “Existing Lender”) was the beneficial owner of 33,628,926
Class A Ordinary Shares represented by 5,604,821 ADSs (the “Pledged GenTao ADSs”), which formed part of the collateral
pledged to the Existing Lender under the Facility Documentation, as amended by the First Standstill Letter and the Second Standstill
Letter (collectively, the “Existing Facility Documentation”). Under the Existing Facility Documentation, the Existing
Lender also had security interests in one Class A Ordinary Share, 27,757,992 Class B Ordinary Shares and one share in GenTao (together
with the Pledged GenTao ADS, the “Pledged Securities”).
Issuance of the Note
GenTao, acting as the issuer, together with
Beacon, Fast Horse and Sunrise (collectively, the “Corporate Obligors”) and Mr. Sheng Chen, acting as the personal
guarantor, entered into a subscription agreement dated as of 28 June 2024 (the “Subscription Agreement”) with Shining
Rich Holdings Limited (the “Investor”). On July 5, 2024, GenTao issued a 12 per cent. secured guaranteed note (the
“Note”) in the principal amount up to $24,000,000 pursuant to the Subscription Agreement (the “Issuance of
the Note”), all proceeds of which are used to repay the aggregate of all outstanding amounts then due, owing or incurred by
the Corporate Obligors to the Existing Lender under the Existing Facility Documentation up to the date of Issuance of the Note (the “Outstanding
Amount”) which, as of July 5, 2024, amounts to $23,923,372.26. Following the receipt of the Outstanding Amount by the Existing
Lender, the security interests in the Pledged Securities would be released and the Pledged GenTao ADSs would be re-registered in the
name of GenTao, pursuant to the arrangements set out in a deed of undertaking among GenTao, Beacon, the Existing Lender and the Investor
(the “Deed of Undertaking”), which was signed concurrently with the Subscription Agreement.
As part of their obligations under the Subscription
Agreement and the Note, on the date of the Issuance of the Note, GenTao and the other Corporate Obligors entered into equitable share
charges (the “New Cayman Share Charges”) with the Investor, pursuant to which GenTao and the Corporate Obligors collectively
pledged 68,373,133 Class A Ordinary Shares of the Company (including the Pledged ADS) and 27,757,992 Class B Ordinary Shares of the Company,
as collateral to secure the obligations due, owing or incurred by the Corporate Obligors and Mr. Sheng Chen under the Subscription Agreement
and the ancillary documents thereto. Mr. Sheng Chen and the Corporate Obligors have also undertaken to pledge any Class A Ordinary Shares
(including Class A Ordinary Shares held in the form of ADSs) and Class B Ordinary Shares of the Company acquired by Mr. Sheng Chen or
the Corporate Obligors in the future for the benefit of the Investor. Mr. Sheng Chen and the Corporate Obligors have also undertaken
to the Investor that they will procure the Company not to issue or grant any shares in the Company or confer any rights to obtain any
shares in the Company to them or any person controlled by them (together with Mr. Sheng Chen and the Corporate Obligors, the “Obligor
Entities”), other than shares of the Company that may be issued or granted under any of the Company’s share option scheme
or share award scheme, where such issuance or grant has been approved by all members of the board of directors of the Company. Mr. Sheng
Chen and the Corporate Obligors have also undertaken to the Investor that they will procure the Company not to, in each financial year,
issue or grant any share in the Company or confer any rights to obtain any shares in the Company that accumulated to 5% or more of the
total issued and outstanding shares of the Company (including all of the issued and outstanding ordinary shares and preferred shares
of the Company on an as-converted basis) as at the first (1st) calendar date of that financial year to any person or entity other than
the Obligor Entities. On the same date, Mr. Sheng Chen entered into equitable share charges (the “New BVI Share Charges”)
with the Investor, pursuant to which Mr. Sheng Chen has pledged all of his shares in each of the Corporate Obligors as collateral to
secure the obligations under the Subscription Agreement and the ancillary documents thereto. All of the foregoing undertakings will lapse
automatically when the Note is fully redeemed and all amounts payable in relation thereto have been paid in full.
Issuer Acknowledgement Letter
In connection with the entry into the Subscription
Agreement, on July 5, 2024, the Issuer entered into an acknowledgement letter with the Investor and GenTao (the “Listco Acknowledgement
Letter”) pursuant to which the Issuer has agreed to, among other things, take specified administrative actions in connection
with any transfer of any or all of the collateral posted by the Investor upon an exercise of remedies under the Subscription Documentation.
The foregoing descriptions of the Subscription
Agreement, the Deed of Undertaking, the New Cayman Share Charges, the New BVI Share Charges and the Listco Acknowledgement Letter in
this Item 6 do not purport to be complete and are qualified in their entirety by reference to Exhibit 99.22 to Exhibit 99.32
filed as set forth below and which is incorporated herein by reference.
Item
7. |
Material
to Be Filed as Exhibits. |
Item 7 is supplemented by adding the following:
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: July 8, 2024
Sheng Chen |
By |
/s/
Sheng Chen |
|
|
Sheng Chen |
|
|
|
GenTao Capital Limited |
By |
/s/
Sheng Chen |
|
|
Name: Sheng Chen |
|
|
Title: Director |
|
|
|
Fast Horse Technology
Limited |
By |
/s/
Sheng Chen |
|
|
Name: Sheng Chen |
|
|
Title: Director |
Sunrise Corporate
Holding Ltd. |
By |
/s/
Sheng Chen |
|
|
Name: Sheng Chen |
|
|
Title: Director |
|
|
|
Personal Group Limited |
By |
/s/
Sheng Chen |
|
|
Name: Sheng Chen |
|
|
Title: Director |
|
|
|
Beacon Capital Group Inc. |
By |
/s/
Sheng Chen |
|
|
Name: Sheng Chen |
|
|
Title: Director |
Exhibit 99.22
EXECUTION VERSION
Dated 28th day
of June 2024
GENTAO CAPITAL LIMITED
(as Issuer)
and
CHEN SHENG
(陈升)
(as Guarantor) and
BEACON CAPITAL GROUP
INC.
and
FAST HORSE TECHNOLOGY
LIMITED
and
SUNRISE CORPORATE HOLDING
LTD.
(as BVI Cos)
and
SHINING RICH HOLDINGS
LIMITED
耀富控股有限公司
(as Investor)
SUBSCRIPTION AGREEMENT
relating to
12 PER CENT. SECURED
GUARANTEED NOTE
IN THE PRINCIPAL AMOUNT
UP TO US$24,000,000
TABLE OF CONTENTS
Clause |
|
Page |
1. |
DEFINITIONS AND INTERPRETATION |
1 |
2. |
THE NOTE |
20 |
3. |
PURPOSE |
20 |
4. |
CONDITIONS PRECEDENT |
20 |
5. |
NOTICE OF ISSUANCE |
21 |
6. |
CLOSING |
23 |
7. |
TAX GROSS UP AND INDEMNITIES |
26 |
8. |
INCREASED COSTS |
27 |
9. |
MITIGATION BY THE INVESTOR |
28 |
10. |
OTHER INDEMNITIES |
28 |
11. |
COSTS AND EXPENSES |
30 |
12. |
GUARANTEE AND INDEMNITY |
31 |
13. |
REPRESENTATIONS AND WARRANTIES |
35 |
14. |
INFORMATION UNDERTAKINGS |
48 |
15. |
GENERAL UNDERTAKINGS |
51 |
16. |
CHANGES TO THE PARTIES |
62 |
17. |
DISCLOSURE OF INFORMATION |
64 |
18. |
PAYMENT MECHANICS |
66 |
19. |
SET-OFF |
69 |
20. |
NOTICES |
69 |
21. |
CALCULATIONS AND CERTIFICATES |
71 |
22. |
PARTIAL INVALIDITY |
71 |
23. |
REMEDIES AND WAIVERS |
71 |
24. |
AMENDMENTS AND WAIVERS |
71 |
25. |
COUNTERPARTS |
72 |
26. |
INDEMNITIES AND REIMBURSEMENT |
72 |
27. |
DURATION |
72 |
28. |
GENERAL |
72 |
29. |
GOVERNING LAW |
73 |
30. |
ENFORCEMENT |
74 |
31. |
WAIVER OF IMMUNITIES |
74 |
32. |
ENTIRE AGREEMENT |
75 |
Schedule 1 PARTICULARS OF THE ISSUER | |
SCH 1-1 |
Schedule 2 FORM OF NOTE INSTRUMENT | |
SCH 2-1 |
Schedule 3 FORM OF NOTICE OF ISSUANCE | |
SCH 3-1 |
Schedule 4 CONDITIONS PRECEDENT | |
SCH 4-1 |
Schedule 5 SHAREHOLDING TABLE | |
SCH 5-1 |
THIS AGREEMENT is dated
the 28th day of June 2024 and made among:
(1) | GENTAO CAPITAL LIMITED, a BVI business company incorporated under
the laws of the British Virgin Islands with limited liability with company number 1759132 and with its
registered office at Vistra Corporate Services Centre, Wickhams Cay II, Road Town, Tortola, VG1110,
British Virgin Islands (the “Issuer”); |
(2) | CHEN SHENG (陈升),
a citizen of the PRC with passport number [*****] and PRC Identity Card number [*****] and
domiciled in the PRC (the “Guarantor”); |
(3) | BEACON CAPITAL GROUP INC., a BVI business
company incorporated under the laws of the British Virgin Islands with limited liability
with company number 469757 and with its registered office at Vistra Corporate Services Centre,
Wickhams Cay II, Road Town, Tortola, VG1110, British Virgin Islands (“BVI-1”); |
(4) | FAST HORSE TECHNOLOGY LIMITED, a BVI business
company incorporated under the laws of the British Virgin Islands with limited liability
with company number 368150 and with its registered office at Vistra Corporate Services Centre,
Wickhams Cay II, Road Town, Tortola, VG1110, British Virgin Islands (“BVI-2”); |
(5) | SUNRISE CORPORATE HOLDING LTD., a BVI business
company incorporated under the laws of the British Virgin Islands with limited liability
with company number 1622848 and with its registered office at Kingston Chambers P.O. Box
173, Road Town, Tortola, British Virgin Islands (“BVI-3” and, together
with the Issuer, BVI-1 and BVI-2, the “BVI Cos” and, together with the
Guarantor, the “Obligors”); and |
(6) | SHINING RICH HOLDINGS LIMITED 耀富控股有限公司,
a BVI business company incorporated under the laws of the British Virgin Islands with limited
liability with company number 1972405 and with its registered office at Portcullis Chambers,
4th Floor Ellen Skelton Building, 3076 Sir Francis Drake Highway, Road Town, Tortola, British
Virgin Islands VG1110 (the “Investor”). |
WHEREAS:
(A) | As at the date of this Agreement, the Issuer has
a share capital of US$1 with one (1) issued ordinary share. Particulars of the Issuer
are set out in Schedule 1 (Particulars of the Issuer). |
(B) | The Guarantor is the sole legal and beneficial
owner of the entire issued share capital of each of the Issuer and the BVI Cos. |
(C) | Upon the terms and conditions set forth in this Agreement (including
the terms and conditions as set out in the Schedules), the Issuer intends to issue to the Investor,
and the Investor intends to subscribe from the Issuer, the 12 per cent. secured guaranteed Note in the
principal amount up to US$24,000,000 (the “Note”) at Closing (as defined below). |
IT IS AGREED as follows:
1. | DEFINITIONS AND INTERPRETATION |
In this Agreement:
“ADS” means an American
depositary share of the Listco (each representing six (6) Class A Shares in the Listco (subject to adjustment for share splits,
share consolidations or other similar events that have a diluting or concentrative effect on the ADS, provided that no such adjustment
shall be made if (and to the extent that) the Listco and/or the Depositary, pursuant to their authority (if any), elects to adjust the
number of Class A Shares represented by each ADS such that the price and other terms of the ADS will not be affected by any such
diluting or concentrative event)), which are listed on the Nasdaq Global Select Market (Stock Code: Nasdaq: VNET).
“Affiliate” means,
in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company.
“Authorisation” means:
| (a) | an authorisation, consent, approval, resolution, licence, exemption,
filing, notarisation, lodgement or registration; or |
| (b) | in relation to anything which will be
fully or partly prohibited or restricted by law if a Governmental Agency intervenes or acts
in any way within a specified period after lodgement, filing, registration or notification,
the expiry of that period without intervention or action. |
“Bearer Share” has the meaning given
to it under the BVI Business Companies Act, (No 16 of 2004), as amended.
“Broker” means Huatai Financial Holdings
(Hong Kong) Limited.
“Business Day” means
a day (other than a Saturday or Sunday) on which banks are open for general business in Hong Kong and, on any day on which a payment
in US dollars is to be made, New York City.
“BVI Act” means
the British Virgin Islands Business Companies Act 2004, as amended and/or supplemented from time to time.
“BVI Co Shares”
means the respective issued shares in the BVI Cos.
“BVI Registrar”
means the Registrar of Corporate Affairs of the British Virgin Islands.
“BVI-1 Account”
means the bank account designated by the Issuer for receiving the proceeds from the issue of the Note, which shall be specified in the
Notice of Issuance.
“Charged Shares (BVI Cos)”
means (a) collectively the Charged Shares (Guarantor – Issuer), the Charged Shares (Guarantor – BVI-1), the Charged
Shares (Guarantor – BVI-2) and the Charged Shares (Guarantor – BVI-3); and (b) all BVI Co Shares which become subject
to Security under this Agreement or any Transaction Security Document from time to time.
“Charged Shares (BVI-1 –
Listco)” means (a) 34,744,206 Class A Shares, representing approximately 2.20% of all issued shares in the Listco;
and (b) any and all Listco Shares issued to or acquired by BVI-1 from time to time, to be charged by BVI-1 in favour of the Investor
under the Share Charge (BVI-1 – Listco).
“Charged Shares (BVI-2 –
Listco)” means (a) 19,670,117 Class B Shares, representing approximately 1.24% of all issued shares in the Listco;
and (b) any and all Listco Shares issued to or acquired by BVI-2 from time to time, to be charged by BVI-2 in favour of the Investor
under the Share Charge (BVI-2 – Listco).
“Charged Shares (BVI-3 –
Listco)” means (a) 8,087,875 Class B Shares, representing approximately 0.51% of all issued shares in the Listco;
and (b) any and all Listco Shares issued to or acquired by BVI-3 from time to time, to be charged by BVI-3 in favour of the Investor
under the Share Charge (BVI-3 – Listco).
“Charged Shares (Guarantor
– Issuer)” means (a) one (1) share in the Issuer, representing all issued share in the Issuer; and (b) any
and all shares in the Issuer issued to or acquired by the Guarantor from time to time, to be charged by the Guarantor in favour of the
Investor under the Share Charge (Guarantor – Issuer).
“Charged Shares (Guarantor
– BVI-1)” means (a) 50,000 shares in BVI-1, representing all issued shares in BVI-1; and (b) any and all shares
in BVI-1 issued to or acquired by the Guarantor from time to time, to be charged by the Guarantor in favour of the Investor under the
Share Charge (Guarantor – BVI-1).
“Charged Shares (Guarantor
– BVI-2)” means (a) four (4) shares in BVI-2, representing all issued shares in BVI-2; and (b) any and
all shares in BVI-2 issued to or acquired by the Guarantor from time to time, to be charged by the Guarantor in favour of the Investor
under the Share Charge (Guarantor – BVI-2).
“Charged Shares (Guarantor
– BVI-3)” means (a) 1,000 shares in BVI-3, representing all issued shares in BVI-3; and (b) any and all shares
in BVI-3 issued to or acquired by the Guarantor from time to time, to be charged by the Guarantor in favour of the Investor under the
Share Charge (Guarantor – BVI-3).
“Charged Shares (Issuer –
Listco)” means (a) one (1) Class A Share, representing approximately 0.00% of all issued shares in the Listco;
(b) 33,628,926 Class A Shares represented by the Subject ADSs (Issuer – Listco) to be re-registered in the name of the
Issuer pursuant to Clause 15.21(a)(iii); and (c) any and all Listco Shares issued to or acquired by the Issuer from time to time,
to be charged by the Issuer in favour of the Investor under the Share Charge (Issuer – Listco).
“Charged Shares (Listco)”
means (a) collectively the Charged Shares (Issuer – Listco), the Charged Shares (BVI-1 – Listco), the Charged Shares
(BVI-2 – Listco) and the Charged Shares (BVI-3 – Listco); and (b) all Listco Shares which become subject to Security
under this Agreement or any Transaction Security Document from time to time.
“Class A Shares” means class A ordinary
shares in the capital of the Listco which has a par value of US$0.00001 each.
“Class B Shares” means class B ordinary
shares in the capital of the Listco which has a par value of US$0.00001 each.
“Class C Shares” means class C ordinary
shares in the capital of the Listco which has a par value of US$0.00001 each.
“Code” means the U.S. Internal Revenue
Code of 1986, as amended.
“Conditions Precedent” means the conditions
precedent for the subscription of the Note as referred to in Clause 4.1 (Conditions Precedent).
“Closing” means the closing of the subscription
of the Note. “Closing Date” has the meaning ascribed to it in Clause 6.1(a).
“Confidential Information”
means all information relating to any Obligor, any other Group Member, the Transaction Documents or the Note of which the Investor becomes
aware in its capacity as, or for the purpose of becoming, the Investor or which is received by the Investor in relation to, or for the
purpose of becoming the Investor under, the Transaction Documents or the Note from any Group Member or any of its advisers, in whatever
form, and includes information given orally and any document, electronic file or any other way of representing or recording information
which contains or is derived or copied from such information but excludes information that:
| (a) | is or becomes public information other
than as a direct or indirect result of any breach by the Investor of Clause 17 (Disclosure
of information); or |
| (b) | is identified in writing at the time of delivery as non-confidential
by any Group Member or any of its advisers; or |
| (c) | is known by the Investor before the date
the information is disclosed to it in accordance to the provision in this definition described
above or is lawfully obtained by the Investor after that date, from a source which is, as
far as the Investor is aware, unconnected with the Listco Group and which, in either case,
as far as the Investor is aware, has not been obtained in breach of, and is not otherwise
subject to, any obligation of confidentiality. |
“Confidentiality Undertaking” means a
confidentiality undertaking in any form agreed between the Issuer and the Investor.
“Control Documents”
means any loan agreement, exclusive technical consulting and services agreement, share pledge agreement, power of attorney, share purchase
agreement and any other related arrangement or agreement that is entered into by each of Abitcool (China) Broadband Inc., Joytone Infotech
Co., Ltd., VNET Data Center Co., Ltd. (previously known as 21Vianet Date Center Co., Ltd.) and Shanghai Edge Connect Technology
Co., Ltd. so as to achieve effective control over and receive the economic benefits of business operations of the Controlled Entities
which are subject to the Controlled Entity Structure.
“Controlled Entities” means each of the
Controlled Group Holding Companies and all of their Subsidiaries from time to time.
“Controlled Entity Structure”
means any arrangement where an entity (that is established in the PRC and in respect of which the Listco does not, directly or indirectly,
hold or own a majority of its issued shares or equity interests) (the “VIE Entities”) and/or its shareholders enter
into contractual arrangements with any Subsidiary of the Listco which enables such Subsidiary of the Listco to exercise effective control
over and receive the economic benefits of business operations of the VIE Entities and their Subsidiaries and consolidate the financial
condition or results of operation of the VIE Entities and their Subsidiaries in accordance with GAAP for the purposes of the consolidated
financial statements of the Listco.
“Controlled Group Holding Companies”
means the following companies:
| (a) | Beijing Yiyun Network Technology Group
Co., Ltd (北京毅云网络科技集团有限公司)
(previously known as Beijing Yiyun Network Technology Co., Ltd (北京毅云网络科技有限公司)),
a limited liability company incorporated under the laws of the PRC with united social credit
code of 9111010574332214XF; |
| (b) | Shanghai Zhiyan Yunwei Technology Co.,
Ltd (上海致沿云惟科技有限公司),
a limited liability company incorporated under the laws of the PRC with united social credit
code of 91310115MA1K4N1X8D; |
| (c) | Beijing iJoy Information Technology Co.,
Ltd (北京阅联信息技术有限公司),
a limited liability company incorporated under the laws of the PRC with united social credit
code of 911101026996479581; and |
| (d) | Hulian Xincheng Network Technology (Beijing)
Co., Ltd. (互联新程网络科技(
北京)有限公司) (previously known as Wifire
Network Technology (Beijing) Co., Ltd ( 光载无限网络科技(
北京) 有限公司)), a limited liability company
incorporated under the laws of the PRC with united social credit code of 911101170958055139. |
“Conversion” means any sale, lease, transfer
or other disposal:
| (a) | of Class A Shares of the Listco in
exchange for ADSs of the Listco representing all such exchanged Class A Shares, provided
that all such ADSs of the Listco are registered by the Depositary in the name of the Investor
for the benefit of the Issuer (or the relevant Obligor) and subject to Security not prohibited
by the Depositary and in form and substance satisfactory to the Investor and the Investor
is provided with all documents, notices, other evidence as required under the relevant Transaction
Security Document(s) and any security confirmations as may be required by the Investor;
or |
| (b) | of Class B Shares of the Listco in
exchange for Class A Shares of the Listco representing all such exchanged Class B
Shares, provided that all such Class A Shares of the Listco are subject to Security
in form and substance satisfactory to the Investor and the Investor is provided with all
documents, notices, other evidence as required under the relevant Transaction Security Document(s) and
any security confirmations as may be required by the Investor. |
“Conversion Procedures”
means the procedures for Conversion as may be set out in the memorandum and articles of association of the Listco, the Deposit Agreement,
the “Procedures for Conversion of Class A Ordinary Shares into ADSs” of the Listco dated 10 May 2024 and the Amended
and Restated Restricted ADS Letter Agreement dated 26 January 2021 between the Listco and the Depositary, and such other procedures
for Conversion as may be agreed by the Listco, the Issuer and the Investor, as applicable.
“Decree No. 56”
means the Administrative Measures for Examination and Registration of Medium and Long-term Foreign Debts of Enterprises (Decree No. 56
of the NDRC, 《企业中长期外债审核登记管理办法》),
including its implementation rules, interpretations, supplement, modification and succession regulations.
“Deeds of Release (Existing
Security Documents)” means collectively the deed(s) of release to be executed by the Existing Facility Lender in favour
of the respective Obligors under which the Existing Facility Lender absolutely discharges and releases all Security created in favour
of it under the Existing Security Documents.
“Default” means
an Event of Default or any event or circumstance specified in the Note Instrument which would (with the expiry of a grace period, the
giving of notice, the making of any determination under the Transaction Documents or any combination of any of the foregoing) be an Event
of Default.
“Delegate” means
any delegate, agent, attorney or co-trustee appointed by the Investor.
“Deposit Agreement”
means the deposit agreement dated 20 April 2011 and as amended and supplemented from time to time between the Listco, the Depositary
and the holders and beneficial owners of ADSs issued thereunder.
“Depositary” means
Citibank, N.A. or its successor.
“Depositary Confirmation Letter”
means the depositary confirmation letter to be entered into between the Depositary, the Investor and the Listco.
“Designated Exchange”
means the principal U.S. national securities exchange on which that the ADSs are listed for trading or, if the ADSs are not listed on
any U.S. national securities exchange, the U.S. national market system that is the primary market for the trading of the ADSs.
“Discharge Date”
has the meaning given to it under the Existing Facility Lender Deed of Undertaking.
“Disruption Event”
means either or both of:
| (a) | a
material disruption to those payment or communications systems or to those financial markets
which are, in each case, required to operate in order for payments to be made in connection
with the Note (or otherwise in order for the transactions contemplated by the Transaction
Documents to be carried out) which disruption is not caused by, and is beyond the control
of, any of the Parties; and |
| (b) | the occurrence of any other event which
results in a disruption (of a technical or systems-related nature) to the treasury or payments
operations of a Party preventing that, or any other Party: |
| (i) | from performing its payment obligations
under the Transaction Documents; or |
| (ii) | from communicating with other Parties in accordance with the terms
of the Transaction Documents |
and which (in either such case) is not caused by, and is
beyond the control of, the Party whose operations are disrupted.
“Encumbrances” any
mortgage, charge (whether fixed or floating), pledge, lien (other than lien created by operation of law), option, restriction, hypothecation,
assignment, deed of trust, title retention, security interest or other encumbrance of any kind securing, or conferring any priority of
payment in respect of, any obligation of any person, including any right granted by a transaction which, in legal terms, is not the granting
of security but which has an economic or financial effect similar to the granting of security under applicable laws.
“Environment” means
humans, animals, plants and all other living organisms including the ecological systems of which they form part and the following media:
| (a) | air (including air within natural or man-made structures, whether
above or below ground); |
| (b) | water (including territorial, coastal and inland waters, water under
or within land and water in drains and sewers); and |
| (c) | land (including land under water). |
“Environmental Claim” means any claim,
proceeding or investigation by any person in respect of any Environmental Law.
“Environmental Law”
means any applicable law, regulation or practice in any jurisdiction in which any Group Member conducts business which relates to:
| (a) | the pollution or protection of the environment
or harm to or the protection of human health or the health of animals or plants; or |
| (b) | the creation, storage, handling and disposal of industrial waste and
hazardous substances. |
“Environmental Permit”
means any permit and other Authorisation and the filing of any notification, report or assessment required at any time under any Environmental
Law for the operation of the business of any Group Member conducted on or from the properties owned or used by any Group Member.
“Event of Default” means any event or
circumstance specified as such in the Note Instrument.
“Existing Facility”
means the term loan facility granted by the Existing Facility Lender to the Issuer under the US$50,250,000 term loan facility agreement
dated 19 August 2021 for the Issuer acting as borrower, BVI-1, BVI-2, BVI-3 and the Guarantor each acting as a Guarantor with the
Existing Facility Lender acting as lender, and any loan (to the extent it is outstanding) advanced by the Existing Facility Lender to
the Issuer and any outstanding amount owed to the Existing Facility Lender thereunder.
“Existing Facility Lender” means Bold
Ally (Cayman) Limited, the lender in the Existing Facility.
“Existing Facility Lender
Deed of Undertaking” means the deed of undertaking to be entered into among the Issuer, the Existing Facility Lender and the
Investor in relation to undertakings to be made by the Existing Facility Lender for taking steps to release all security interests created
over the assets of the Obligors under the Existing Facility.
“Existing Security Documents” means the
following documents executed in connection with the Existing Facility:
| (a) | the equitable share mortgage dated 19
August 2021 executed by the Guarantor in favour of the Existing Facility Lender in respect
of certain shares in the Issuer held by the Guarantor; |
| (b) | the equitable share mortgage dated 19
August 2021 executed by BVI-1 in favour of the Existing Facility Lender in respect of
certain Class A Shares held by BVI-1; |
| (c) | the equitable share mortgage dated 19
August 2021 executed by BVI-2 in favour of the Existing Facility Lender in respect of
certain Class A Shares and Class B Shares held by BVI-2; |
| (d) | the equitable share mortgage dated 19
August 2021 executed by BVI-3 in favour of the Existing Facility Lender in respect of
certain Class A Shares and Class B Shares held by BVI-3; |
| (e) | the equitable share mortgage dated 19
August 2021 executed by the Issuer in favour of the Existing Facility Lender in respect
of certain Class A Shares held by the Issuer; |
| (f) | the pledge agreement dated 6 April 2022
executed by the Issuer in favour of the Existing Facility Lender in respect of certain ADSs
held by the Issuer; and |
| (g) | any other documents executed by any Obligor
for providing security in favour of the Existing Facility Lender from time to time. |
“FATCA” means
| (a) | sections 1471 to 1474 of the Code or any associated regulations; |
| (b) | any treaty, law or regulation of any other
jurisdiction, or relating to an intergovernmental agreement between the US and any other
jurisdiction, which (in either case) facilitates the implementation of any law or regulation
referred to in paragraph (a) above; or |
| (c) | any agreement pursuant to the implementation
of any treaty, law or regulation referred to in paragraph (a) or (b) above with
the US Internal Revenue Service, the US government or any governmental or taxation authority
in any other jurisdiction. |
“FATCA Application Date” means
| (a) | in relation to a “withholdable payment”
described in section 1473(1)(A)(i) of the Code (which relates to payments of interest
and certain other payments from sources within the US), 1 July 2014; or |
| (b) | in relation to a “passthru payment”
described in section 1471(d)(7) of the Code not falling within paragraph (a) above,
the first date from which such payment may become subject to a deduction or withholding required
by FATCA. |
“FATCA Deduction”
means a deduction or withholding from a payment under a Transaction Document required by FATCA.
“FATCA Exempt Party”
means a Party that is entitled to receive payments free from any FATCA Deduction.
“FATCA FFI” means
a foreign financial institution as defined in section 1471(d)(4) of the Code which, if the Investor is not a FATCA Exempt Party,
could be required to make a FATCA Deduction.
“Financial Indebtedness”
means any indebtedness for or in respect of:
| (b) | any
amount raised by acceptance under any acceptance credit facility or dematerialised equivalent; |
| (c) | any
amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures,
loan stock or any similar instrument; |
| (d) | the
amount of any liability in respect of any lease or hire purchase contract which would, in
accordance with GAAP, be treated as a finance or capital lease; |
| (e) | receivables
sold or discounted (other than any receivables to the extent they are sold or discounted
on a non-recourse basis); |
| (f) | any
amount raised under any other transaction (including any forward sale or purchase agreement)
of a type not referred to in any other paragraph of this definition having the commercial
effect of a borrowing; |
| (g) | any derivative transaction entered into
in connection with protection against or benefit from fluctuation in any rate or price (and,
when calculating the value of any derivative transaction, only the marked to market value
(or, if any actual amount is due as a result of the termination or close-out of that derivative
transaction, that amount) shall be taken into account); |
| (h) | shares
which are expressed to be redeemable; |
| (i) | any
counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary
letter of credit or any other instrument issued by a bank or financial institution; and |
| (j) | the
amount of any liability in respect of any guarantee or indemnity for any of the items referred
to in paragraphs (a) to (i) above. |
“GAAP” means in
relation to each of the Issuer, the BVI Cos and any Group Member, the generally accepted accounting principles in the U.S.
“Governmental Agency”
means any government or any governmental agency, semi- governmental or judicial entity, body, agency, department, or regulatory, self-regulatory
or other authority (including any stock exchange or any self-regulatory organisation established under statute).
“Holding Company”
means, in relation to a person, any other person in respect of which it is a Subsidiary.
“Hong Kong” means Hong Kong Special Administrative
Region of the PRC.
“Increased Costs” has the meaning given
to it in paragraph (b) of Clause 8.1 (Increased costs).
“Indirect Tax” means any goods and services
tax, consumption tax, value added tax or any tax of a similar nature.
“Interest Period”
means, in relation to the Note, a period of twelve (12) months (or such other period as the Issuer and the Investor may agree).
“Legal Reservations”
means:
| (a) | the
principle that equitable remedies may be granted or refused at the discretion of a court
and the limitation of enforcement by laws relating to insolvency, reorganisation and other
laws generally affecting the rights of creditors; |
| (b) | the
time barring of claims under the Limitation Ordinance (Cap. 347 of the laws of Hong Kong)
and defences of set-off or counterclaim; |
| (c) | similar principles, rights and defences under the laws of any Relevant
Jurisdiction; and |
| (d) | any other matters which are set out as
qualifications or reservations as to matters of law of general application in any legal opinion
delivered in accordance with Clause 4 (Conditions Precedent). |
“Listco” means VNET
Group, Inc. (世纪互联集团),
an exempted company incorporated in the Cayman Islands with limited liability whose class A ordinary shares (in the form of ADSs) are
traded under the ticker symbol “VNET” on NASDAQ Global Select Market.
“Listco Acknowledgement Letter”
means the Listco acknowledgement letter to be entered into between the Listco and the Investor in respect of matters relating to the
Conversion and transfer of Class B Shares, Class A Shares and/or the ADSs in connection with the enforcement of the relevant
Security by the Investor.
“Listco Group” means
the Listco and each of its Subsidiaries and their respective variable interest entities from time to time and “Group Member”
means any of those persons.
“Listco Registrar”
means Maples Fund Services (Asia) Limited and any successor share registrar for the Listco acceptable to the Investor.
“Listco Shares”
means shares in the Listco in issue for the time being.
“Long Stop Date”
has the meaning ascribed to it in Clause 4.2 (Non-fulfilment). “Material Adverse Effect” means a material adverse
effect on:
| (a) | the
business and financial condition of the Listco Group taken as a whole; |
| (b) | the
ability of each Obligor to perform its obligations under the Transaction Documents; or |
| (c) | the
validity, legality or enforceability of, or the effectiveness or ranking of any Security
granted or purposed to be granted pursuant to, any of the Transaction Documents, or the rights
or remedies of the Investor under any of the Transaction Documents. |
“Maturity Date”
means the date falling thirty-six (36) months from the Closing Date.
“MNPI” means any
information (including, without limitation, any information regarding any material adverse change or prospective material adverse change
in the condition of, or any actual, pending or threatened litigation, arbitration or similar proceeding involving, Listco) that is not
described in the Listco’s most recent annual report or subsequent public information releases and which, if it were made public,
would be likely to have a significant effect on the price or value of the shares of the Listco.
“Money Laundering Laws”
has the meaning given to it in Clause 13.25 (Money Laundering Laws).
“Month” means a
period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:
| (a) | subject to paragraph (c) below, if
the numerically corresponding day is not a Business Day, that period shall end on the next
Business Day in that calendar month in which that period is to end if there is one, or if
there is not, on the immediately preceding Business Day; |
| (b) | if
there is no numerically corresponding day in the calendar month in which that period is to
end, that period shall end on the last Business Day in that calendar month; and |
| (c) | if
an Interest Period begins on the last Business Day of a calendar month and that interest
period is to be of a duration equal to a whole number of months, that Interest Period shall
end on the last Business Day in the calendar month in which that Interest Period is to end. |
“NASDAQ” means the
National Association of Securities Dealers Automated Quotations.
“NASDAQ Rules” means
the applicable rules and regulations of the NASDAQ Stock Market (or any successor entity) with respect to the transactions contemplated
by the Transaction Documents hereof.
“NASDAQ Trading Day”
means a day on which the NASDAQ Global Select Market and/or Global Market where the ADSs are traded at the relevant time is open for
business.
“NBWD” means nei
bao wai dai (内保外贷), being an arrangement
or transaction where a creditor that is incorporated, registered or domiciled outside the PRC or considered or deemed to be an offshore
creditor by SAFE:
| (a) | extends
any facility, loan or advance to a borrower incorporated or registered outside of the PRC;
and/or |
| (b) | conducts
any transactions with such borrower incorporated or registered outside of the PRC, |
and in respect of that facility, loan
or advance or transaction, any guarantee or Security is granted by any person that is incorporated or registered in the PRC.
“NBWD Regulations”
means the Administrative Regulations on Cross Border Guarantee (《跨境担保外汇管理规定》汇发【2014】29
号) issued by SAFE on 12 May 2014 and its implementation rules and
interpretations.
“NDRC” means the
National Development and Reform Commission (中华人民共和国国家发展和改革委员会)
of the PRC or its authorised local counterparts or any other authority succeeding to its functions.
“Note” means the
12 per cent. secured guaranteed Note in the principal amount up to US$24,000,000 issued in minimum denomination of US$600,000 with the
benefit of and subject to the terms and conditions set out in this Agreement and the Note Instrument.
“Note Certificate”
means a certificate in respect of the Note to be issued to the Investor pursuant to the terms of the Note Instrument.
“Note Instrument”
means the instrument by way of deed poll to be executed by the Issuer creating and constituting the Note substantially in the form set
out in Schedule 2(Form of Note Instrument).
“Notice of Issuance”
means a notice substantially in the form set out in Schedule 3 (Form of Notice of Issuance).
“OFAC” means the
Office of Foreign Assets Control of the U.S. Department of Treasury.
“Original Financial Statements”
means, in relation to the Listco, the audited consolidated financial statements of the Listco for its financial year ended 31 December 2023.
“Party” means a
party to this Agreement. “Permitted Financial Indebtedness” means:
| (a) | Financial
Indebtedness arising under any of the Transaction Documents; and |
| (b) | Financial
Indebtedness repaid in full prior to or at the same time as the Closing. |
“Personal Guarantee”
means the personal guarantee agreement (个人保证合同)
(which is governed by the PRC laws) in the agreed form executed by or to be executed by the Guarantor pursuant to which, among other
things, the Guarantor guarantees in favour of the Investor the due and punctual performance of all obligations of the Obligors under
the Transaction Documents.
“PRC” means the
People’s Republic of China, which for the purpose of the Transaction Documents, excludes Hong Kong, the Macau Special Administrative
Region and Taiwan.
“PRC Business Day” means a day on which
banks are open for general business in the PRC.
“Quasi-Security” has the meaning given
to that term in Clause 15.4(a)(Negative pledge).
“Receiver” means
a receiver or receiver and manager or administrative receiver of the whole or any part of the Secured Property.
“Register of Noteholders”
means the register of holders of the Note which will be maintained and kept by the Issuer in accordance with the Note Instrument.
“Registrar Confirmation Letter”
means the registrar confirmation letter to be entered into between, among others, each Corporate Obligor, the Investor, and the Listco
Registrar or the registered office provider of the Listco (as required by the Investor).
“Relevant Jurisdiction”
means, in relation to an Obligor or a Group Member:
| (a) | its jurisdiction of incorporation or (in relation to the Guarantor
or the Spouse) its place of residence; |
| (b) | any jurisdiction where any of its asset is situated; |
| (c) | any jurisdiction whose laws govern the
perfection of any of the Transaction Security Documents entered into by it; and |
| (d) | any
jurisdiction where it conducts its business. |
“Representative”
means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.
“RMB means renminbi, the
lawful currency of the PRC.
“SAFE” means the
State Administrative of Foreign Exchange of the PRC or its authorized local branch, including its successors and its counterparts.
“Sanctions” has
the meaning ascribed to it in Clause 13.22 (Sanctions).
“Secured Property”
means all of the assets which from time to time are, or are expressed to be, the subject of Security.
“Securities Account”
means an account held in the name of the Issuer with the Broker with account number [*****].
“Security” means
a mortgage, charge, pledge, lien, assignment or other security interest securing any obligation of any person or any other agreement
or arrangement having a similar effect.
“Security Perfection Requirements”
means:
| (a) | the
making of any other appropriate registrations, filings or notifications in respect of a Transaction
Security Document as specifically contemplated by that Transaction Security Document or any
other Transaction Document or any legal opinion related thereto; |
| (b) | the
execution and delivery of any notices required to be delivered to counterparties of contracts
which are assigned pursuant to the Transaction Security Documents; and |
| (c) | any
other control, registration or notice requirement which the Investor may request to perfect
the Security in the Transaction Security Documents. |
“Share Charge (Issuer –
Listco)” means the charge of all rights, entitlements, interests and benefits in the Charged Shares (Issuer – Listco)
and all derived interests to be made by the Issuer in favour of the Investor as security for all sums due and payable to the Investor
under the Transaction Documents.
“Share Charge (BVI-1 –
Listco)” means the charge of all rights, entitlements, interests and benefits in the Charged Shares (BVI-1 – Listco)
and all derived interests to be made by BVI-1 in favour of the Investor as security for all sums due and payable to the Investor under
the Transaction Documents.
“Share Charge (BVI-2 –
Listco)” means the charge of all rights, entitlements, interests and benefits in the Charged Shares (BVI-2 – Listco)
and all derived interests to be made by BVI-2 in favour of the Investor as security for all sums due and payable to the Investor under
the Transaction Documents.
“Share Charge (BVI-3 –
Listco)” means the charge of all rights, entitlements, interests and benefits in the Charged Shares (BVI-3 – Listco)
and all derived interests to be made by BVI-3 in favour of the Investor as security for all sums due and payable to the Investor under
the Transaction Documents.
“Share Charge (Guarantor –
Issuer)” means the charge of all rights, entitlements, interests and benefits in the Charged Shares (Guarantor – Issuer)
and all derived interests to be made by the Guarantor in favour of the Investor as security for all sums due and payable to the Investor
under the Transaction Documents.
“Share Charge (Guarantor –
BVI-1)” means the charge of all rights, entitlements, interests and benefits in Charged Shares (Guarantor – BVI-1) and
all derived interests to be made by the Guarantor in favour of the Investor as security for all sums due and payable to the Investor
under the Transaction Documents.
“Share Charge (Guarantor –
BVI-2)” means the charge of all rights, entitlements, interests and benefits in the Charged Shares (Guarantor – BVI-2)
and all derived interests to be made by the Guarantor in favour of the Investor as security for all sums due and payable to the Investor
under the Transaction Documents.
“Share Charge (Guarantor –
BVI-3)” means the charge of all rights, entitlements, interests and benefits in the Charged Shares (Guarantor – BVI-3)
and all derived interests to be made by the Guarantor in favour of the Investor as security for all sums due and payable to the Investor
under the Transaction Documents.
“Share Charges (BVI Cos)”
means collectively the Share Charge (Guarantor – Issuer), the Share Charge (Guarantor – BVI-1), the Share Charge (Guarantor
– BVI-2) and the Share Charge (Guarantor – BVI-3).
“Share Charges (Listco)”
means collectively the Share Charge (Issuer – Listco), the Share Charge (BVI-1 – Listco), the Share Charge (BVI-2 –
Listco) and the Share Charge (BVI-3 – Listco).
“Spouse” means HUANG
LING ( 黄 玲 ), a citizen of the PRC with passport number
[*****] and PRC Identity Card number [*****] and domiciled in the PRC.
“Spousal Undertaking”
means the letter of undertaking of Spouse (配偶承诺函)
(which is governed by the PRC laws) in the agreed form executed by or to be executed by the Spouse pursuant to which, among other things,
the Spouse consents to obligations to be borne by the Guarantor under the Personal Guarantee.
“Subject ADSs (Issuer –
Listco)” means 5,604,821 ADSs to be cancelled as ADSs and re-registered as 33,628,926 Class A Shares (representing approximately
2.13% of all issued shares in the Listco) in the name of the Issuer pursuant to Clause 15.21(a)(iii).
“Subordinated” means
fully subordinated in right, time and priority of payments to all amount outstanding under the Transaction Documents in accordance with
such terms as required by, and in form and substance satisfactory to, the Investor.
“Subsidiary” means,
in relation to any company or corporation, a company or corporation:
| (a) | which
is controlled, directly or indirectly, by the first mentioned company or corporation; |
| (b) | more
than half the issued equity share capital of which is beneficially owned, directly or indirectly,
by the first mentioned company or corporation; or |
| (c) | which
is a Subsidiary of another Subsidiary of the first mentioned company or corporation, |
and for this purpose, a company or
corporation shall be treated as being controlled by another if that other company or corporation (either directly or indirectly and whether
by share capital, voting power, contract or otherwise) is able to direct its affairs and/or policies and/or to control the composition
of its board of directors or equivalent body.
“Tax” means any
tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with
any failure to pay or any delay in paying any of the same).
“Tax Deduction” has the meaning given
to such term in Clause 7.1 (Tax definitions).
“Total Subscription Amount” means the
subscription amount of up to US$24,000,000 in respect of the Note.
“Transaction Documents” means collectively:
| (b) | the Existing Facility Lender Deed of Undertaking; |
| (e) | the Personal Guarantee; |
| (f) | the Spousal Undertaking; |
| (g) | the Transaction Security Documents; |
| (i) | the Registrar Confirmation Letter; and |
| (j) | any other document designated and agreed as such by the Investor and
the Issuer. |
and “Transaction Document” means any
of them.
“Transaction Security”
means the Security created or evidenced or expressed to be created or evidenced under any or all of the Transaction Security Documents.
“Transaction Security Documents”
means collectively:
| (a) | the
Share Charges (BVI Cos); |
| (b) | the
Share Charges (Listco); and |
| (c) | any
other document evidencing or creating or expressed to evidence or create Security over any
asset to secure any obligation of any Obligor to the Investor under the Transaction Documents;
and |
| (d) | any
other document designated as such by the Investor and the Issuer, |
and shall include all notices, acknowledgements
or other documents required pursuant thereto or in connection therewith and “Transaction Security Document” means
any of them.
“Unpaid Sum” means
any sum due and payable but unpaid by the Issuer under the Transaction Documents.
“U.S.” means the
United States of America.
“U.S. Securities Act”
means the United States Securities Act of 1933, as amended.
“Voting Stock” means,
with respect to any person, capital stock of any class or kind ordinarily having the power to vote for the election of directors, managers
or other voting members of the governing body of such person.
“Warning Notice”
means the warning notice to be executed by the Guarantor.
“%” means percent
or percentage.
| (a) | Unless
a contrary indication appears, any reference in this Agreement to: |
| (i) | the
“Issuer”, the “Investor”, the “Guarantor”,
any “Obligor”, any “Party” or any other person shall
be construed so as to include its successors in title, permitted assigns and permitted transferees; |
| (ii) | “assets”
or “property” includes present and future properties, revenues and rights
of every description; |
| (iii) | one
person being “controlled” by another means that that other person (whether
directly or indirectly and whether by the ownership of share capital, the possession of voting
power, contract or otherwise) has the power to appoint and/or remove the majority of the
members of the governing body of that person or otherwise controls or has the power to control
the affairs and policies of that person, and “control” shall be construed
accordingly; |
| (iv) | “guarantee”
means any guarantee, letter of credit, bond, indemnity or similar assurance against loss,
or any obligation, direct or indirect, actual or contingent, to purchase or assume any indebtedness
of any person or to make an investment in or loan to any person or to purchase assets of
any person where, in each case, such obligation is assumed in order to maintain or assist
the ability of such person to meet its indebtedness; |
| (v) | “including”
shall be construed as “including without limitation” (and cognate expressions
shall be construed similarly); |
| (vi) | “indebtedness”
includes any obligation (whether incurred as principal or as surety) for the payment or repayment
of money, whether present or future, actual or contingent; |
| (vii) | a
“person” includes any individual, firm, company, corporation, government,
state or agency of a state or any association, trust, joint venture, consortium, partnership
or other entity (whether or not having separate legal personality); |
| (viii) | a
“regulation” includes any regulation, rule, official directive, request
or guideline (whether or not having the force of law) of any governmental, intergovernmental
or supranational body, agency, department or regulatory, self-regulatory or other authority
or organisation; |
| (ix) | a
“Transaction Document” or any other agreement or instrument is a reference
to that Transaction Document or other agreement or instrument as amended, novated, supplemented,
extended or restated, however fundamentally; |
| (x) | a provision of law is a reference to that provision as amended or
re-enacted; |
| (xi) | unless otherwise indicated, a time of day is a reference to Hong
Kong time; |
| (xii) | “law” means common
law, principles of equity and laws made by legislative council (and law made by legislative
council include statutes, statutory instruments and other instruments under them); |
| (xiii) | the
words “including”, “for example” or “such
as” when introducing an example do not limit the meaning of the words to which
the example relates to that example or examples of a similar kind; |
| (xiv) | any
thing (including an amount) is a reference to the whole and each part of it; and |
| (xv) | “know
your customer checks” means any “know your customer” or other
identification checks or procedures under any law or regulation. |
| (b) | Unless
a contrary indication appears, references to Clauses and Schedules are to be construed as
references to clauses of, and schedules to, this Agreement. |
| (c) | Section,
Clause and Schedule headings are for ease of reference only. |
| (d) | Unless
a contrary indication appears, a term used in any other Transaction Document or in any notice
given under or in connection with any Transaction Document has the same meaning in that Transaction
Document or notice as in this Agreement. |
| (e) | A
Default (other than an Event of Default) is “continuing” if it has not
been remedied or waived and an Event of Default is “continuing” if it
has not been waived. |
| (f) | Where
this Agreement specifies an amount in a given currency (the “specified currency”)
or its equivalent, the “equivalent” is a reference to the amount of any
other currency which, when converted into the specified currency utilising the spot rate
of exchange published on the website of the Bank of China (Hong Kong) Limited (or such other
bank or financial institution as agreed between the Issuer and the Investor) for the purchase
of the specified currency with that other currency at or about 11:00 am on the relevant date,
is equal to the relevant amount in the specified currency. |
| (g) | In
the Transaction Documents, the singular includes the plural and vice versa, and references
to the muscular gender includes the feminine gender and the neuter gender, and vice versa. |
| (h) | All
warranties, indemnities, covenants, undertakings, agreements and obligations in this Agreement
given or entered into by more than one person are given or entered into jointly and severally. |
| (i) | A
NASDAQ Trading Day may be “consecutive” with another NASDAQ Trading Day
notwithstanding that it is separated by a day (including, a weekend or public holiday) which
is not a NASDAQ Trading Day. |
1.3 | Currency Symbols and Definitions |
“HK$” and “HK
dollars” denote the lawful currency of Hong Kong.
“US$” and “US
dollars” denote the lawful currency of the United States of America.
| (a) | Unless
expressly provided to the contrary in a Transaction Document, a person who is not a Party
has no right under the Contracts (Rights of Third Parties) Ordinance (Cap. 623 of the laws
of Hong Kong) (the “Third Parties Ordinance”) to enforce or to enjoy the
benefit of any term of this Agreement. |
| (b) | Notwithstanding
any term of any Transaction Document, the consent of any third person who is not a Party
is not required to rescind or vary this Agreement at any time. |
| (c) | Any
Receiver or Delegate may, subject to this Clause 1.4 and the Third Parties Ordinance, rely
on any Clause of this Agreement, which expressly confers rights on it. |
2.1 | Issue and Subscription |
Subject to the terms of this Agreement,
the Investor agrees to subscribe for, and the Issuer agrees to issue to the Investor, the Note having a principal amount of, and for
a price up to, the Total Subscription Amount on the Closing Date.
The Issuer shall apply the proceeds
from the issue of the Note only towards:
| (a) | the
full repayment of any sums due, owing or incurred by any Obligor to the Existing Facility
Lender under the Existing Facility; and |
| (b) | payment
of fees, costs, expenses and Taxes in relation to the Transaction Documents. |
The Investor has the right but is
not bound to monitor or verify such use of the proceeds from the issue of the Note pursuant to this Agreement.
The Investor’s obligations to
subscribe for the Note under this Agreement are conditional upon (unless waived in writing by the Investor):
| (a) | the
Investor having received all documents and evidence set out in Schedule 4 (Conditions
Precedent) in form and substance satisfactory to the Investor on or prior to the Closing
Date; |
| (b) | on
the Closing Date, no Default is continuing or would result from the proposed issue of the
Note; and |
| (c) | the
representations and warranties of the Obligors contained in the Transaction Documents to
which it is a party being true, accurate and complete and not misleading during the period
beginning on the date of this Agreement and ending on the Closing Date; |
| (d) | the
Existing Facility Lender has, by 6:00 p.m. (Hong Kong time) on the Business Day immediately
following the date that it receives the copy of the Notice of Issuance, delivered to the
Investor a notice in writing (which may be by way of email) stating the aggregate amount
of all sums (including without limitation the outstanding principal amount of all loan(s) under
the Existing Facility, all outstanding interest accrued thereon, all outstanding fees, costs
and expenses in connection with the Existing Facility, and all bank charges, costs and expenses
that may be incurred by BVI-1in connection with the transfer of the proceeds from the issue
of the Note to the bank account designated by the Existing Facility Lender) (the “Outstanding
Amount of the Existing Facility”) required for all Obligors to discharge all their
respective obligations owed to the Existing Facility Lender (whether under the Existing Facility
or otherwise) as at the proposed Closing Date; and |
| (e) | as
at the Closing Date, the Outstanding Amount of the Existing Facility shall not exceed the
Total Subscription Amount. |
If any of the conditions precedent
in Clause 4.1 (Conditions Precedent) have not been fulfilled or waived by the Investor on or before the day which falls on the
expiry of fifteen
(15) Business Days immediately following
the date of this Agreement (or such later date as may be agreed by the Investor and the Issuer in writing) (the “Long Stop Date”),
then this Agreement (save and except for Clause 1 (Definitions and Interpretation), Clause 7 (Tax Gross Up and Indemnities),
Clause 10 (Other Indemnities), Clause 17 (Disclosure of Information), Clause 20 (Notices), Clause 27.3 (Survival),
Clause 29 (Governing Law) and Clause 30 (Enforcement)) shall lapse immediately thereafter and be of no further effect and
no Party shall have any claim against or liability or obligation which have accrued before termination of this Agreement.
| 5.1 | Delivery
of a Notice of Issuance |
The Issuer shall deliver to the Investor
a duly completed Notice of Issuance not later than 10 a.m. on the date falling three (3) Business Days prior to the Closing
Date (or at such other time as the Investor may agree).
| 5.2 | Completion
of a Notice of Issuance |
| (a) | The
Notice of Issuance is irrevocable and will not be regarded as having been duly completed
unless: |
| (i) | the
currency and amount of the Total Subscription Amount comply with Clause 5.3 (Currency
and amount); and |
| (i) | the
Notice of Issuance shall specify the BVI-1 Account which shall receive the proceeds from
the issuance of the Note. |
| (b) | There
will only be one (1) issuance of the Note. |
| (a) | The
currency specified in a Notice of Issuance must be US dollars. |
| (b) | The
principal amount of the Note must be an amount which is not more than the Total Subscription
Amount. |
| (a) | Subject
to the satisfaction or waiver by the Investor (as the case may be) of the conditions precedent
set out in Clause 4.1 (Conditions Precedent), the Closing shall take place on the third (3rd)
Business Day following the day on which the Conditions Precedent set out in Clause 4.1 (Condition
Precedent) are satisfied (or, whether appropriate, waived by the Investor) in accordance
with this Agreement, or such other time or date as the Investor may agree in writing, but
in any event no later than the Long Stop Date (the “Closing Date”). |
| (b) | On
or before 2 p.m. (or such other time as agreed between the Parties) on the Closing Date,
the Issuer shall deliver to the Investor: |
| (i) | one
(1) Note Certificate duly executed and authenticated by the Issuer representing the
Total Subscription Amount; and |
| (ii) | a
certified true copy of the Register of Noteholders, evidencing that the name of the Investor
has been entered on the Register of Noteholders as the holder of the Note. |
| (c) | If
the conditions set out in this Agreement have been met and the Issuer has delivered the documents
and evidence set out in Clause 6.1(b) above, the Investor shall subscribe for, and pay
or cause to be paid, to the BVI-1 Account specified in the Notice of Issuance the Total Subscription
Amount. Payment to the BVI-1 Account by the Investor shall fully discharge its payment obligation
under this Agreement. |
| 7. | TAX
GROSS UP AND INDEMNITIES |
“Tax Credit” means
a credit against, relief or remission for, or repayment of any Tax;
“Tax Deduction”
means a deduction or withholding for or on account of Tax from a payment under a Transaction Document, other than a FATCA Deduction;
and
“Tax Payment”
means an increased payment made by an Obligor to the Investor under Clause 7.2 (Tax gross-up) or a payment under Clause 7.3 (Tax
indemnity).
| (b) | Unless
a contrary indication appears, in this Clause 7, a reference to determines or determined
means a determination made in the absolute discretion of the person making the determination. |
| (a) | All
payments to be made by an Obligor to the Investor under the Transaction Documents shall be
made free and clear of and without any Tax Deduction unless such Obligor is required to make
a Tax Deduction, in which case the sum payable by such Obligor (in respect of which such
Tax Deduction is required to be made) shall be increased to the extent necessary to ensure
that the Investor receives a sum net of any deduction or withholding equal to the sum which
it would have received had no such Tax Deduction been made or required to be made. |
| (b) | The
Issuer shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that
there is any change in the rate or the basis of a Tax Deduction) notify the Investor accordingly.
Similarly, the Investor shall promptly notify the Issuer on becoming so aware in respect
of a payment payable to the Investor. |
| (c) | If
an Obligor is required to make a Tax Deduction, such Obligor shall make that Tax Deduction
and any payment required in connection with that Tax Deduction within the time allowed and
in the minimum amount required by law. |
| (d) | Within
thirty (30) days of making either a Tax Deduction or any payment required in connection with
that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Investor evidence
reasonably satisfactory to the Investor that the Tax Deduction has been made or (as applicable)
any appropriate payment paid to the relevant taxing authority. |
| (a) | Without
prejudice to Clause 7.2 (Tax gross-up), if the Investor is required to make any payment
of or on account of Tax on or in relation to any sum received or receivable under the Transaction
Documents (including any sum deemed for purposes of Tax to be received or receivable by the
Investor whether or not actually received or receivable) or if any liability in respect of
any such payment is asserted, imposed, levied or assessed against the Investor, the Obligors
shall, within five (5) Business Days of demand of the Investor, promptly indemnify the
Investor against such payment or liability, together with any interest, penalties, costs
and expenses payable or incurred in connection therewith, provided that this Clause 7.3(a) shall
not apply to: |
| (i) | any
applicable corporate income Tax imposed on and calculated by reference to the net income
actually received or receivable by the Investor (but, for the avoidance of doubt, not including
any sum deemed for purposes of Tax to be received or receivable by the Investor but not actually
receivable) by the jurisdiction in which the Investor is incorporated; or |
| (ii) | any
loss or liability that relates to a FATCA Deduction required to be made by a Party. |
| (b) | The
Investor intending to make a claim under Clause 7.3(a) above shall notify the Issuer
of the event giving rise to the claim. |
If an Obligor makes a Tax Payment
and the Investor determines that:
| (a) | a
Tax Credit is attributable to an increased payment of which that Tax Payment forms part,
to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required;
and |
| (b) | the
Investor has obtained and utilised that Tax Credit, |
the Investor shall pay an amount to
such Obligor which the Investor determines will leave it (after that payment) in the same after-Tax position as it would have been in
had the Tax Payment not been required to be made by such Obligor.
The Obligors shall:
| (a) | pay
all stamp duty, registration and other similar Taxes payable in respect of any Transaction
Document; and |
| (b) | within
five (5) Business Days of demand, indemnify the Investor against any cost, loss or liability
the Investor incurs in relation to any stamp duty, registration or other similar Tax paid
or payable in respect of any Transaction Document. |
| (a) | All
amounts set out or expressed in a Transaction Document to be payable by any Obligor to the
Investor shall be deemed to be exclusive of any Indirect Tax. If any Indirect Tax is chargeable
on any supply made by the Investor to any Obligor in connection with a Transaction Document,
the Obligor shall pay to the Investor (in addition to and at the same time as paying the
consideration) an amount equal to the amount of the Indirect Tax. |
| (b) | Where
a Transaction Document requires any Obligor to reimburse the Investor for any costs or expenses,
the Obligor shall also at the same time pay and indemnify the Investor against all Indirect
Tax incurred by the Investor in respect of the costs or expenses to the extent that the Investor
reasonably determines that it is not entitled to credit or repayment in respect of the Indirect
Tax. |
| (a) | Subject
to paragraph (c) below, each Obligor shall, within ten (10) Business Days of a
reasonable request by the Investor: |
| (i) | confirm
to the Investor whether it is: |
| (i) | a
FATCA Exempt Party; or |
| (ii) | not
a FATCA Exempt Party; |
| (ii) | supply
to the Investor such forms, documentation and other information relating to its status under
FATCA as the Investor reasonably requests for the purposes of the Investor’s compliance
with FATCA; and |
| (iii) | supply
to the Investor such forms, documentation and other information relating to its status as
the Investor reasonably requests for the purposes of the Investor’s compliance with
any other law, regulation, or exchange of information regime. |
| (b) | If
an Obligor confirms to the Investor under paragraph (a)(i) above that it is a FATCA
Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA
Exempt Party, that Obligor shall notify the Investor reasonably promptly. |
| (c) | Paragraph
(a) above shall not oblige the Investor to do anything, and paragraph (a)(iii) above
shall not oblige the Investor to do anything, which would or might in its reasonable opinion
constitute a breach of: |
| (i) | any
law or regulation; |
| (ii) | any
fiduciary duty; or |
| (iii) | any
duty of confidentiality. |
| (d) | If
an Obligor fails to confirm whether or not it is a FATCA Exempt Party or to supply forms,
documentation or other information requested in accordance with paragraph (a)(i) or
(a)(ii) above (including, for the avoidance of doubt, where paragraph (c) above
applies), then such Obligor shall be treated for the purposes of the Transaction Documents
(and payments under them) as if it is not a FATCA Exempt Party until such time as the Obligor
in question provides the requested confirmation, forms, documentation or other information. |
| 7.8 | FATCA
Deduction and gross up by Obligors |
| (a) | If
an Obligor becomes aware that it is required to make a FATCA Deduction, that Obligor must
make that FATCA Deduction and any payment required in connection with that FATCA Deduction
within the time allowed and in the minimum amount required by FATCA. |
| (b) | If
a FATCA Deduction is required to be made by an Obligor, other than as a result of a failure
by the Investor to comply with FATCA, the amount of the payment due from that Obligor must
be increased to an amount which (after making any FATCA Deduction) leaves an amount equal
to the payment which would have been due if no FATCA Deduction had been required. |
| (c) | The
Issuer must promptly upon becoming aware that an Obligor must make a FATCA Deduction (or
that there is any change in the rate of the basis of a FATCA Deduction) notify the Investor
accordingly. Similarly, the Investor must also notify the Issuer and that Obligor upon the
Investor becoming so aware in respect of a payment payable to it. |
| (d) | Within
thirty (30) days of making either a FATCA Deduction or any payment required in connection
with that FATCA Deduction, the Obligor making that FATCA Deduction or payment must deliver
to the Investor evidence reasonably satisfactory to the Investor that the FATCA Deduction
has been made or (as applicable) any appropriate payment paid to the relevant governmental
or taxation authority |
| 7.9 | FATCA
Deduction by the Investor |
The Investor may make any FATCA Deduction
it is required by FATCA to make, and any payment required in connection with that FATCA Deduction, and the Investor shall not be required
to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for
that FATCA Deduction. The Investor must, when it becomes aware that it must make a FATCA Deduction in respect of a payment to another
Party (or that there is any change in the rate or the basis of such FATCA Deduction), notify that Party.
| (a) | Subject
to Clause 8.3 (Exceptions), the Obligors shall, within five (5) Business Days
of a demand by the Investor, pay to the Investor the amount of any Increased Costs incurred
by the Investor or any of its Affiliates as a result of: |
| (i) | the
introduction of or any change in (or in the interpretation, administration or application
of) any law or regulation; or |
| (ii) | compliance
with any law or regulation made after the date of this Agreement. |
The terms “law” and
“regulation” in this paragraph (a) shall include, without limitation, any law or regulation concerning capital
adequacy, prudential limits, liquidity, reserve assets or Tax.
| (b) | In
this Agreement “Increased Costs” means: |
| (i) | a
reduction in the rate of return from the Note; |
| (ii) | an
additional or increased cost; or |
| (iii) | a
reduction of any amount due and payable under any Transaction Document, |
which is incurred or suffered by the
Investor or any of its Affiliates to the extent that it is attributable to the undertaking, funding or performance by the Investor of
any of its obligations under any Transaction Document.
| (a) | If
the Investor intends to make a claim pursuant to Clause 8.1 (Increased costs), it
shall notify the Issuer of the event giving rise to the claim. |
| (b) | The
Investor shall, as soon as practicable after a demand by the Issuer, provide a certificate
confirming the amount of its Increased Costs. |
| (a) | Clause
8.1 (Increased costs) does not apply to the extent any Increased Cost is: |
| (i) | attributable
to a Tax Deduction required by law to be made by an Obligor; |
| (ii) | attributable
to a FATCA Deduction required to be made by an Obligor or the Investor; |
| (iii) | compensated
for by Clause 7.3 (Tax indemnity) (or would have been compensated for under Clause
7.3 (Tax indemnity) but was not so compensated solely because the exclusion in Clause
7.3 (Tax indemnity) applied); or |
| (iv) | attributable
to the wilful breach by the Investor or its Affiliates of any law or regulation. |
| (b) | In
this Clause 8.3, a reference to a Tax Deduction has the same meaning given to the term in
Clause 7.1 (Tax definitions). |
| 9. | MITIGATION
BY THE INVESTOR |
| (a) | The
Investor shall, in consultation with the Issuer, take all reasonable steps to mitigate any
circumstances which arise and which would result in any amount becoming payable under or
pursuant to any of Clause 7 (Tax gross-up and indemnities) or Clause 8 (Increased
costs) including: |
| (i) | providing
such information as the Issuer may reasonably request in order to permit the Issuer to determine
its entitlement to claim any exemption or other relief (whether pursuant to a double taxation
treaty or otherwise) from any obligation to make a Tax Deduction; and |
| (ii) | in
relation to any circumstances which arise following the date of this Agreement transferring
its rights and obligations under the Transaction Documents to another Affiliate. |
| (b) | Paragraph
(a) of this Clause 9.1 does not in any way limit the obligations of any Obligor under
the Transaction Documents. |
| 9.2 | Limitation
of liability |
| (a) | The
Obligors shall promptly indemnify the Investor for all costs and expenses reasonably incurred
by the Investor as a result of steps taken by it under Clause 9.1 (Mitigation). |
| (b) | The
Investor is not obliged to take any steps under Clause 9.1 (Mitigation) if, in the
opinion of the Investor, to do so might be prejudicial to it. |
| 9.3 | Conduct
of business by the Investor |
No provision of this Agreement will:
| (a) | interfere
with the right of the Investor to arrange its affairs (tax or otherwise) in whatever manner
it thinks fit; |
| (b) | oblige
the Investor to investigate or claim any credit, relief, remission or repayment available
to it or the extent, order and manner of any claim; |
| (c) | oblige
the Investor to disclose any information relating to its affairs (tax or otherwise) or any
computations in respect of Tax; |
| (d) | notwithstanding
any other provisions of this Agreement to the contrary, oblige the Investor to do or omit
to do anything if it would, or might in its reasonable opinion, constitute a breach of any
applicable anti-money laundering, counter-terrorism financing, economic or trade sanctions
law or regulation. |
| (a) | If
any sum due from an Obligor under the Transaction Documents (a “Sum”),
or any order, judgment or award given or made in relation to a Sum, has to be converted from
the currency (the “First Currency”) in which that Sum is payable into
another currency (the “Second Currency”) for the purpose of: |
| (i) | making
or filing a claim or proof against that Obligor; or |
| (ii) | obtaining
or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings, |
that Obligor shall as an independent
obligation, within five (5) Business Days of demand, indemnify the Investor against any cost, loss or liability arising out of or
as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First
Currency into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt of that
Sum.
| (b) | Each
Obligor waives any right it may have in any jurisdiction to pay any amount under the Transaction
Documents in a currency or currency unit other than that in which it is expressed to be payable. |
| (c) | Payment
of an amount in a currency other than the due currency does not discharge the amount except
to the extent of the amount of the due currency actually obtained when the recipient converts
the amount received into the due currency. |
The Obligors shall, within five (5) Business
Days of demand, indemnify the Investor against any cost, loss or liability incurred by the Investor as a result of:
| (a) | the
occurrence of any Event of Default; |
| (b) | the
information produced or approved by any Obligor being or being alleged to be misleading and/or
deceptive in any respect; |
| (c) | any
enquiry, investigation, subpoena (or similar order) or litigation with respect to any Obligor
or with respect to the transactions contemplated or financed under this Agreement; |
| (d) | a
failure by any Obligor to pay any amount due under a Transaction Document on its due date
or in the relevant currency; |
| (e) | the
Note (or part of the Note) not being redeemed in accordance with the Note Instrument; and/or |
| (f) | funding,
or making arrangements to fund, its subscription for the Note requested by the Issuer in
a Notice of Issuance but not made by reason of the operation of any one or more of the provisions
of this Agreement including where conditions to funding have not been fulfilled either by
the time required under this Agreement or by any later time specified by the Investor (other
than by reason of default or negligence by the Investor alone). |
Any Affiliate or any officer or employee
of the Investor or its Affiliate may rely on this Clause 10.2 (Other indemnities).
| 10.3 | Indemnity
to the Investor |
The Obligors shall, within five (5) Business
Days of demand, indemnify the Investor against any cost, loss or liability incurred by the Investor as a result of:
| (a) | investigating
any event which it reasonably believes is a Default; |
| (b) | any
failure by an Obligor to comply with its obligations under Clause 11 (Costs and Expenses); |
| (c) | acting
or relying on any notice, request or instruction which it reasonably believes to be genuine,
correct and appropriately authorised; |
| (d) | the
taking, holding, protection or enforcement of any Security; |
| (e) | any
default by any Obligor in the performance of any of the obligations expressed to be assumed
by it in the Transaction Documents; and/or |
| (f) | instructing
lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as
permitted under this Agreement. |
Each Obligor expressly acknowledges
and agrees that the continuation of its indemnity obligations under this Clause 10.3 will not be prejudiced by any release or disposal
under any of the Transaction Documents.
The Obligors shall, within five (5) Business
Days of demand, pay the Investor the amount of all costs and expenses (including legal fees) reasonably incurred by it in connection
with the negotiation, preparation, printing, execution and perfection of:
| (a) | this
Agreement, each Transaction Security Document and any other documents referred to in this
Agreement; and |
| (b) | any
other Transaction Documents executed after the date of this Agreement. |
If any Obligor requests an amendment,
waiver or consent, the Obligors shall, within five (5) Business Days of demand, reimburse the Investor for the amount of all costs
and expenses (including legal fees) reasonably incurred by the Investor in responding to, evaluating, negotiating or complying with that
request or requirement.
| 11.3 | Enforcement
and preservation costs |
The Obligors shall, within five (5) Business
Days of demand, pay to the Investor the amount of all costs and expenses (including legal fees) incurred by the Investor in connection
with the enforcement of, or the preservation of any rights under, any Transaction Document and any proceedings instituted by or against
the Investor as a consequence of it entering into a Transaction Document or taking or holding any Security, or enforcing its rights.
| 12. | GUARANTEE
AND INDEMNITY |
| 12.1 | Guarantee
and indemnity |
The Obligors jointly and severally,
irrevocably and unconditionally:
| (a) | guarantee
to the Investor punctual performance by the Obligors of all the Obligors’ obligations
under the Transaction Documents; |
| (b) | undertake
with the Investor that whenever any Obligor does not pay any amount when due under or in
connection with any Transaction Document, the Obligors shall immediately on demand pay that
amount as if each was the principal obligor; and |
| (c) | agree
with the Investor that if any obligation guaranteed by an Obligor is or becomes unenforceable,
invalid or illegal, they will, as an independent and primary obligation, indemnify the Investor
immediately on demand against any cost, loss or liability it incurs as a result of any Obligor
not paying any amount which would, but for such unenforceability, invalidity or illegality,
have been payable by it under any Transaction Document on the date when it would have been
due. The amount payable by each Obligor (other than the Issuer) under this indemnity will
not exceed the amount it would have had to pay under this Clause 12 if the amount claimed
had been recoverable on the basis of a guarantee. |
This guarantee is a continuing guarantee
and will extend to the ultimate balance of sums payable by any Obligor under the Transaction Documents, regardless of any intermediate
payment or discharge in whole or in part.
If any discharge, release or arrangement
(whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is made by the Investor in
whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in insolvency, liquidation,
administration or otherwise, without limitation, then the liability of the Obligors under this Clause 12 will continue or be reinstated
as if the discharge, release or arrangement had not occurred.
The obligations of the Obligors under
this Clause 12 will not be affected by an act, omission, matter or thing which, but for this Clause 12, would reduce, release or prejudice
any of its obligations under this Clause 12 (without limitation and whether or not known to it or the Investor) including:
| (a) | any
time, waiver or consent granted to, or composition with, any Obligor or other person; |
| (b) | the
release of any other Obligor or any other person under the terms of any composition or arrangement
with any creditor of any Obligor; |
| (c) | the
taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to
perfect, execute, take up or enforce, any rights against, or security over assets of, any
Obligor or other person or any non-presentation or non-observance of any formality or other
requirement in respect of any instrument or any failure to realise the full value of any
security; |
| (d) | any
death, incapacity or lack of power, authority or legal personality of or dissolution or change
in the members or status of an Obligor or any other person; |
| (e) | any
amendment, novation, supplement, extension, restatement (however fundamental and whether
or not more onerous) or replacement of a Transaction Document or any other document or security
including any change in the purpose of, any extension of or any increase in any facility
or the addition of any new facility under any Transaction Document or other document or security; |
| (f) | any
unenforceability, illegality or invalidity of any obligation of any person under any Transaction
Document or any other document or security; |
| (g) | any
set off, combination of accounts or counterclaim; |
| (h) | any
insolvency or similar proceedings; |
| (i) | this
Agreement or any other Transaction Document not being executed by or binding upon any other
party; |
| (j) | any
assignment or other dealing with this guarantee, undertaking and indemnity or any Transaction
Document; |
| (k) | any
law or regulation of any jurisdiction or any event affecting any term of any obligation guaranteed
or expressed to be guaranteed by any Obligor; |
| (l) | any
governmental orders or decrees of any jurisdiction that may otherwise affect the currency
in which any payment under any Transaction Document is or may be made; or |
| (m) | any
other circumstance that might constitute a defence of any Obligor or any other person. |
References in Clause 12.1 (Guarantee
and indemnity) to obligations of an Obligor or amounts due will include what would have been obligations or amounts due but for any
of the above, as well as obligations and amounts due which result from any of the above.
Each Obligor waives any right it may
have of first requiring the Investor (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security
or claim payment from any person before claiming from any Obligor under this Clause 12. This waiver applies irrespective of any law or
any provision of a Transaction Document to the contrary.
Until all amounts which may be or
become payable by the Obligors under or in connection with the Transaction Documents have been irrevocably paid in full, the Investor
(or any trustee or agent on its behalf) may:
| (a) | refrain
from applying or enforcing any other moneys, security or rights held or received by the Investor
(or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce
the same in such manner and order as it sees fit (whether against those amounts or otherwise)
and no Obligor shall not be entitled to the benefit of the same; and |
| (b) | hold
in an interest-bearing suspense account any moneys received from any Obligor or on account
of any Obligor’s liability under this Clause 12. |
| 12.7 | Deferral
of Obligors’ rights |
Until all amounts which may be or
become payable by the Obligors under or in connection with the Transaction Documents have been irrevocably paid in full and unless the
Investor otherwise directs, no Obligor shall:
| (a) | exercise
or otherwise enjoy the benefit of any right which it may have by reason of performance by
it of its obligations under the Transaction Documents or by reason of any amount being payable,
or liability arising, under this Clause 12: |
| (i) | to
be indemnified by any Obligor, or any provider of Security for the Obligor’s obligations
under the Transaction Documents or by reason of any amount being payable, or liability arising,
under this Clause 12; |
| (ii) | to
claim any contribution from any other guarantor of or provider of security for any Obligor’s
obligations under the Transaction Documents; |
| (iii) | to
take the benefit (in whole or in part and whether by way of subrogation or otherwise) of
any rights of the Investor under the Transaction Documents or of any other guarantee or security
taken pursuant to, or in connection with, the Transaction Documents by the Investor; |
| (iv) | to
bring legal or other proceedings for an order requiring any Obligor to make any payment,
or perform any obligation, in respect of which the Guarantor has given a guarantee, undertaking
or indemnity under Clause 12.1 (Guarantee and indemnity); |
| (v) | to
exercise any right of set-off against any Obligor; and/or |
| (vi) | to
claim or prove as a creditor of any Obligor in competition with the Investor; |
| (b) | exercise
a right of proof or claim in any form of administration of any Obligor or guarantor of or
any provider of Security for any Obligor’s obligations under the Transaction Documents
(including in any liquidation, winding up, bankruptcy, voluntary administration, dissolution
or receivership or any analogous process) or exercise any vote or other rights in respect
of, any indebtedness of any nature owed to it by the Issuer or the other Obligors; or |
| (c) | reduce
its liability under this guarantee, undertaking or indemnity by claiming that it or any Obligor
or any other person has a right of set-off or counterclaim or any other right against the
Investor. |
If any Obligor shall receive any benefit,
payment or distribution in relation to any such right it shall hold that benefit, payment or distribution (or so much of it as may be
necessary to enable all amounts which may be or become payable to the Investor by the Obligors under or in connection with the Transaction
Documents to be paid in full) on trust for the Investor, and shall promptly pay or transfer the same to the Investor or as the Investor
may direct for application in accordance with Clause 18 (Payment mechanics).
| 12.8 | No
set-off against assignees |
If the Investor assigns or otherwise
deals with its rights under the Transaction Documents, no Obligor shall claim against any assignee (or any other person who has an interest
in this guarantee, undertaking and indemnity) any right of set-off or counterclaim or any other right any Obligor has against the Investor.
This guarantee is in addition to and
is not in any way prejudiced by any other guarantee or security now or subsequently held by the Investor.
Without prejudice to the generality
of Clause 12.4 (Waiver of defences), each Obligor expressly confirms that it intends that this guarantee shall extend from time
to time to any (however fundamental) variation, increase, extension or addition of or to any of the Transaction Documents and/or any
amount made available under any of the Transaction Documents for the purpose of or in connection with any of the following: acquisition
of any nature; increasing working capital, enabling investor distribution to be made; carrying out restructurings; refinancing existing
facilities; refinancing any other indebtedness; any other variation or extension of the purposes for which any such amount might be made
available from time to time; and any fees, costs and/or expenses associated with any of the foregoing.
| 12.11 | Independent
legal advice |
Prior to the signing of this Agreement,
each Obligor has been advised by its own solicitors:
| (a) | that
it has the choice not to proceed with the transaction in connection with this Agreement; |
| (b) | to
obtain and review the financial information of the Issuer and be satisfied with such financial
information before signing this Agreement; |
| (c) | that
by signing this Agreement, it may be liable: |
| (i) | for
the punctual performance by each Obligor of all its obligations under this Agreement in accordance
with Clause 12.1 (Guarantee and indemnity); and |
| (ii) | to
indemnify the Investor in accordance with Clause 12.1 (Guarantee and indemnity); |
| (d) | that
if any Obligor does not pay any amount when due under this Agreement or the Investor suffers
any loss or liability if any obligation of any Obligor under this Agreement is or becomes
unenforceable, invalid or illegal, it will be called upon to honour its obligations under
this Clause 12; |
| (e) | its
liabilities under this Clause 12 are payable on demand; |
| (f) | that
its obligations under this Clause 12 will be extinguished when all amounts owed by any Obligor
to the Investor under this Agreement have been unconditionally and irrevocably paid and discharged
in full; and |
| (g) | that
it has been or will be provided with a copy of this Agreement. |
The Parties intend this Agreement
to bind each Obligor as a deed and it shall take effect as a deed, even though the other Parties execute this Agreement under hand only.
| 13. | REPRESENTATIONS
AND WARRANTIES |
| 13.1 | Representations
and warranties of the Obligors |
Each Obligor makes the representations
and warranties set out in this Clause 13 to the Investor on the date of this Agreement.
| (a) | Each
corporate Obligor and each other Group Member is a corporation, duly incorporated or established,
validly existing and in good standing under the laws of its incorporation or establishment. |
| (b) | The
Guarantor is a natural person with full civil capacity and has the qualification and ability
to sign and perform his obligations under the Transaction Documents; |
| (c) | Each
Obligor and each other Group Member has the power to own its assets and carry on its business
as it is being conducted. |
| (d) | No
Obligor is a FATCA FFI or a US Tax Obligor. |
| (a) | Subject
to the Legal Reservations, the obligations expressed to be assumed by each Obligor in each
Transaction Document are legal, valid, binding and enforceable obligations. |
| (b) | Without
limiting the generality of paragraph (a) above, each Transaction Security Document to
which it is a party creates the security interests which that Transaction Security Document
purports to create and those security interests are valid and effective. |
| 13.4 | Non-conflict
with other obligations |
The entry into and performance by
each Obligor of, and the transactions contemplated by, the Transaction Documents do not and will not conflict with:
| (a) | any
law or regulation applicable to it (including but not limited to the NASDAQ Rules); |
| (b) | its
and each of its Subsidiaries’ constitutional documents; or |
| (c) | any
agreement or instrument binding upon it or any of its Subsidiaries or any of its or any of
its Subsidiaries’ assets to the extent it has, or might reasonably, be expected to
have a Material Adverse Effect, |
nor result in the existence of, or
oblige any Obligor to create, any Security over any of its assets.
| (a) | Each
Obligor has the power to enter into, perform and deliver, and has taken all necessary action
to authorise its entry into, performance and delivery of, the Transaction Documents to which
it is a party and the transactions contemplated by those Transaction Documents. |
| (b) | No
limit on any Obligor’s powers will be exceeded as a result of the issue of the Note,
granting of security or giving of guarantees or indemnities contemplated by the Transaction
Documents. |
| (c) | The
entry into the Transaction Documents to which it is a party and the transactions contemplated
therein (including the creation of any Security therein) is in its best interests and for
its commercial benefit, and is a proper exercise of its powers. |
| 13.6 | Validity
and admissibility in evidence |
| (a) | All
Authorisations required: |
| (i) | to
enable each Obligor lawfully to enter into, exercise its rights and comply with its obligations
in the Transaction Documents to which it is a party; |
| (ii) | to
make the Transaction Documents admissible in evidence in the Relevant Jurisdiction of each
Obligor; |
| (iii) | for
each Obligor and each Group Member to carry on their business, and which are material; and |
| (iv) | to
enable it to create the Security to be created by it pursuant to any Transaction Security
Document and to ensure that such Security has the priority and ranking it is expressed to
have, |
have been obtained or effected and are
in full force and effect save for, (A) in the case of paragraph (iv) above, complying with any applicable Security Perfection
Requirements; and (B) in the case of paragraphs (i) and (ii) above, the registration requirements set out in paragraph
(g) of Clause 15.21 (Conditions Subsequent).
| (b) | All
Authorisations necessary for the conduct of the business, trade and ordinary activities of
each Group Member have been obtained or effected and are in full force and effect. |
| 13.7 | Governing
law and enforcement |
Subject to Legal Reservations,
| (a) | the
choice of Hong Kong law as the governing law of the Transaction Documents (other than the
Personal Guarantee and Spousal Undertaking) will be recognised and enforced in its Relevant
Jurisdiction; and |
| (b) | any
judgment obtained in Hong Kong in relation to a Transaction Document (other than the Personal
Guarantee and Spousal Undertaking) will be recognised and enforced in its Relevant Jurisdiction. |
It is not required under the law of
the Relevant Jurisdiction of any Obligor to make any deduction for or on account of Tax from any payment any Obligor may make under any
Transaction Document.
| 13.9 | No
filing or stamp taxes |
It is not necessary under the laws
of the Relevant Jurisdictions of the Obligors that the Transaction Documents be filed, recorded or enrolled with any court or other authority
in that jurisdiction or that any stamp, registration, notarial or similar Taxes or fees be paid on or in relation to the Transaction
Documents or the transactions contemplated by the Transaction Documents except (a) for the Security Perfection Requirements and
the registration fees associated with the Security Perfection Requirements, (b) that Cayman Islands stamp duty will be payable on
any Transaction Document that is executed in, brought into or submitted in evidence in a court of, the Cayman Islands, (c) if applicable,
the filing of the transactions contemplated under this Agreement with the NDRC pursuant to Decree No. 56 and any implementation
rule or regulation in connection with Decree No. 56 which filing will be made promptly in accordance with the terms of this
Agreement, and (d) the registration requirements set out in paragraph (g) of Clause 15.21 (Conditions Subsequent).
| (a) | No
Event of Default is continuing or might reasonably be expected to result from the issue of
the Note or the entry into, the performance of, or any transaction contemplated by, any Transaction
Document. |
| (b) | No
other event or circumstance is outstanding which constitutes (or, with the expiry of a grace
period, the giving of notice, the making of any determination or any combination of any of
the foregoing, would constitute) a default or termination event (however described) under
any other agreement or instrument which is binding on any Obligor or Group Member or to which
the assets of the Listco Group are subject which might have a Material Adverse Effect. |
| 13.11 | No
misleading information |
| (a) | Any
written information contained in or provided by an Obligor in relation to any Transaction
Document or the transactions they contemplate (excluding financial projections) was true,
complete and accurate in all material respects as at the date it was provided or as at the
date (if any) at which it is stated. |
| (b) | Nothing
has occurred or been omitted from the information referred to in paragraph (a) above
and no information has been given or withheld that results in that information being untrue
or misleading in any material respect. |
| (c) | Any
financial projections provided by or on behalf of any Obligor or any other Group Member has
been prepared by appropriately qualified persons on the basis of recent historical information
and on the basis of reasonable assumptions. |
| (d) | In
relation to any information provided in connection with the Transaction Documents or the
transactions they contemplate, nothing has occurred or been omitted, and no information has
been given or withheld that results in the information provided being untrue or misleading
in any material respect. |
| (e) | All
information supplied by any Group Member was true, complete and accurate. |
| 13.12 | Financial
statements |
| (a) | Each
of the Listco’s financial statements most recently published and/or made publicly available
has been prepared in accordance with GAAP consistently applied save to the extent expressly
disclosed in such financial statements. |
| (b) | Each
of the Listco’s financial statements most recently published and/or made publicly available
give a true and fair view of its financial condition and operations during the relevant financial
year or period save to the extent expressly disclosed therein. |
| (c) | There
has been no material adverse change in (i) the business or financial condition of any
Obligor or the Listco and (ii) the business or consolidated financial condition of the
Listco Group, since the date of the Original Financial Statements (in case of the Listco
Group) and the date of the financial statements most recently supplied to the Investor (in
case of any Obligor). |
| (a) | Each
Security Document creates (or, once entered into, will create) in favour of the Investor
the Security which it is expressed to create with first ranking priority and it is not subject
to any prior ranking or pari passu ranking Security. |
| (b) | Without
limiting paragraph (a) above, the payment obligations of each Obligor under the Transaction
Documents rank at least pari passu with the claims of all of its other unsecured and
unsubordinated creditors, except for obligations mandatorily preferred by law applying to
companies generally. |
Each Obligor and each Group Member
has a good, valid and marketable title (free from all Encumbrances) to or valid leases or licences of, and all Authorisation to use,
the assets necessary to carry on its business as presently conducted.
| (a) | The
Charged Shares (Guarantor – Issuer) |
| (i) | The
Guarantor is the legal and beneficial owner of the Charged Shares (Guarantor – Issuer).
The Charged Shares (Guarantor – Issuer) which are subject to the Security created under
the Share Charge (Guarantor – Issuer) are fully paid and issued and not subject to
any Encumbrances (other than the Encumbrances created by or permitted under the Existing
Security Documents and the Share Charge (Guarantor – Issuer)). The constitutional documents
of the Issuer whose shares are subject to such Security do not and cannot restrict or inhibit
any transfer of the share on creation or enforcement of the Security created under the Share
Charge (Guarantor – Issuer) except as required by applicable law. |
| (ii) | There
are no agreements in force which provide for the issue or allotment of, or grant any person
the right to call for the issue or allotment of, any share or loan capital of the Issuer
whose share is subject to the Security created under the Share Charge (Guarantor –
Issuer) (including any options or right of pre-emption or conversion). |
| (b) | The
Charged Shares (Guarantor – BVI-1) |
| (i) | The
Guarantor is the legal and beneficial owner of the Charged Shares (Guarantor – BVI-1).
The Charged Shares (Guarantor – BVI-1) which are subject to the Security created under
the Share Charge (Guarantor – BVI-1) are fully paid and issued and not subject to any
Encumbrances (other than the Encumbrances created by or permitted under the Share Charge
(Guarantor – BVI-1)). The constitutional documents of BVI-1 whose shares are subject
to such Security do not and cannot restrict or inhibit any transfer of the share on creation
or enforcement of the Security created under the Share Charge (Guarantor – BVI-1) except
as required by applicable law. |
| (ii) | There
are no agreements in force which provide for the issue or allotment of, or grant any person
the right to call for the issue or allotment of, any share or loan capital of BVI-1 whose
share is subject to the Security created under the Share Charge (Guarantor – BVI-1)
(including any options or right of pre- emption or conversion). |
| (c) | The
Charged Shares (Guarantor – BVI-2) |
| (i) | The
Guarantor is the legal and beneficial owner of the Charged Shares (Guarantor – BVI-2).
The Charged Shares (Guarantor – BVI-2) which are subject to the Security created under
the Share Charge (Guarantor – BVI-2) are fully paid and issued and not subject to any
Encumbrances (other than the Encumbrances created by or permitted under the Share Charge
(Guarantor – BVI-2)). The constitutional documents of BVI-2 whose shares are subject
to such Security do not and cannot restrict or inhibit any transfer of the share on creation
or enforcement of the Security created under the Share Charge (Guarantor – BVI-2) except
as required by applicable law. |
| (ii) | There
are no agreements in force which provide for the issue or allotment of, or grant any person
the right to call for the issue or allotment of, any share or loan capital of BVI-2 whose
share is subject to the Security created under the Share Charge (Guarantor – BVI-2)
(including any options or right of pre- emption or conversion). |
| (d) | The
Charged Shares (Guarantor – BVI-3) |
| (i) | The
Guarantor is the legal and beneficial owner of the Charged Shares (Guarantor – BVI-3).
The Charged Shares (Guarantor – BVI-3) which are subject to the Security created under
the Share Charge (Guarantor – BVI-3) are fully paid and issued and not subject to any
Encumbrances (other than the Encumbrances created by or permitted under the Share Charge
(Guarantor – BVI-3)). The constitutional documents of BVI-3 whose shares are subject
to such Security do not and cannot restrict or inhibit any transfer of the share on creation
or enforcement of the Security created under the Share Charge (Guarantor – BVI-3) except
as required by applicable law. |
| (ii) | There
are no agreements in force which provide for the issue or allotment of, or grant any person
the right to call for the issue or allotment of, any share or loan capital of BVI-3 whose
share is subject to the Security created under the Share Charge (Guarantor – BVI-3)
(including any options or right of pre- emption or conversion). |
| (e) | The
Charged Shares (Issuer – Listco) |
| (i) | The
Issuer is the legal and beneficial owner of the Charged Shares (Issuer – Listco). The
Charged Shares (Issuer – Listco) which are subject to the Security created under the
Share Charge (Issuer – Listco) are fully paid and issued and not subject to any Encumbrances
(other than the Encumbrances created by or permitted under the Existing Security Documents
and the Share Charge (Issuer – Listco)). The constitutional documents of the Listco
whose shares are subject to such Security do not and cannot restrict or inhibit any transfer
of the share on creation or enforcement of the Security created under the Share Charge (Issuer
– Listco) except as required by applicable law. |
| (ii) | There
are no agreements in force which provide for the issue or allotment of, or grant any person
the right to call for the issue or allotment of, any share or loan capital of Listco whose
share is subject to the Security created under the Share Charge (Issuer – Listco) (including
any options or right of pre- emption or conversion). |
| (f) | The
Charged Shares (BVI-1 – Listco) |
| (i) | BVI-1
is the legal and beneficial owner of the Charged Shares (BVI-1 – Listco). The Charged
Shares (BVI-1 – Listco) which are subject to the Security created under the Share Charge
(BVI-1 – Listco) are fully paid and issued and not subject to any Encumbrances (other
than the Encumbrances created by or permitted under the Existing Security Documents and the
Share Charge (BVI-1 – Listco)). The constitutional documents of the Listco whose shares
are subject to such Security do not and cannot restrict or inhibit any transfer of the share
on creation or enforcement of the Security created under the Share Charge (BVI-1 –
Listco) except as required by applicable law. |
| (ii) | There
are no agreements in force which provide for the issue or allotment of, or grant any person
the right to call for the issue or allotment of, any share or loan capital of Listco whose
share is subject to the Security created under the Share Charge (BVI-1 – Listco) (including
any options or right of pre- emption or conversion). |
| (g) | The
Charged Shares (BVI-2 – Listco) |
| (i) | BVI-2
is the legal and beneficial owner of the Charged Shares (BVI-2 – Listco). The Charged
Shares (BVI-2 – Listco) which are subject to the Security created under the Share Charge
(BVI-2 – Listco) are fully paid and issued and not subject to any Encumbrances (other
than the Encumbrances created by or permitted under the Existing Security Documents and the
Share Charge (BVI-2 – Listco)). The constitutional documents of the Listco whose shares
are subject to such Security do not and cannot restrict or inhibit any transfer of the share
on creation or enforcement of the Security created under the Share Charge (BVI-2 –
Listco) except as required by applicable law. |
| (ii) | There
are no agreements in force which provide for the issue or allotment of, or grant any person
the right to call for the issue or allotment of, any share or loan capital of Listco whose
share is subject to the Security created under the Share Charge (BVI-2 – Listco) (including
any options or right of pre- emption or conversion). |
| (h) | The
Charged Shares (BVI-3 – Listco) |
| (i) | BVI-3
is the legal and beneficial owner of the Charged Shares (BVI-3 – Listco). The Charged
Shares (BVI-3 – Listco) which are subject to the Security created under the Share Charge
(BVI-3 – Listco) are fully paid and issued and not subject to any Encumbrances (other
than the Encumbrances created by or permitted under the Existing Security Documents and the
Share Charge (BVI-3 – Listco)). The constitutional documents of the Listco whose shares
are subject to such Security do not and cannot restrict or inhibit any transfer of the share
on creation or enforcement of the Security created under the Share Charge (BVI-3 –
Listco) except as required by applicable law. |
| (ii) | There
are no agreements in force which provide for the issue or allotment of, or grant any person
the right to call for the issue or allotment of, any share or loan capital of Listco whose
share is subject to the Security created under the Share Charge (BVI-3 – Listco) (including
any options or right of pre- emption or conversion). |
| 13.16 | No
proceedings pending or threatened |
| (a) | No
litigation, arbitration or administrative proceedings of, or before any court, arbitral body
or agency which, if adversely determined, might reasonably be expected to have a Material
Adverse Effect, have (to the best of its knowledge and belief) been started or threatened
against any Obligor or any Group Member. |
| (b) | No
judgment or order of a court, arbitral body or agency which might reasonably be expected
to have a Material Adverse Effect has (to the best of its knowledge and belief) been made
against any Obligor or any Group Member. |
| (a) | No
Obligor or Group Member has breached any law or regulation (including but not limited to
the NASDAQ Rules) which has a Material Adverse Effect. |
| (b) | No
labour disputes are current or, to the best of its knowledge and belief, threatened against
any Obligor or any Group Member which, if adversely determined, has a Material Adverse Effect. |
| 13.18 | No
public offering of the Note |
No action has been or will be taken
in any jurisdiction by the Issuer that would permit a public offering of the Note or possession or distribution of any information or
any other offering or publicity material relating to the Note in any country or jurisdiction where action for that purpose is required.
| (a) | The
Issuer is a “foreign issuer” (as such term is defined in Regulation S under the
U.S. Securities Act) which reasonably believes that there is no “substantial US market
interest” (as such term is defined in Regulation S under the U.S. Securities Act) in
the Securities or any securities of the same class or series as the Securities and the Issuer,
its Affiliates (as defined in under Rule 501(b) of Regulation D under the U.S.
Securities Act) and any person acting on its or their behalf have complied with and will
comply with the offering restrictions requirement of Regulation S under the U.S. Securities
Act. |
| (b) | Neither
the Issuer nor any of its Affiliates (as defined in Rule 405 under the U.S. Securities
Act), nor any person acting on behalf of any of them have engaged or will engage in any “directed
selling efforts” (as defined in Regulation S under the U.S. Securities Act) with respect
to the Note. |
| (c) | Neither
the Issuer nor any of its Affiliates (as defined in Rule 405 under the U.S. Securities
Act), nor any person acting on behalf of any of them has taken or will take, directly or
indirectly, any action designed to cause or to result in, or that has constituted or which
might reasonably be expected to cause or result in, what would under any applicable law be,
or deemed to be, the stabilisation or manipulation of the price of any security to facilitate
the sale or resale of the Note. |
| (d) | Neither
the Issuer nor any of its Affiliates (as defined in Rule 501(b) of Regulation D
under the U.S. Securities Act), nor any person acting on behalf of any of them has taken
or will take any action that would require the registration of the Note under the U.S. Securities
Act. |
| 13.20 | Authorised
Signatures |
Any person specified as the authorised
signatory of each Obligor under Schedule 4 (Conditions Precedent) or Clause 14.3 (Information: miscellaneous) is authorised
to sign the Notice of Issuance (in the case of the Issuer) and other notices on its behalf.
| 13.21 | Anti-bribery
and corruption |
| (a) | Neither
any Obligor nor any Affiliate thereof is aware of or has taken any action, directly or indirectly,
that would result in a violation of or has violated the U.S. Foreign Corrupt Practices Act,
as amended, the United Kingdom Bribery Act 2010, as amended, or any other applicable antibribery
or anti-corruption laws, including, without limitation, using any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful payments to any foreign or domestic
governmental official or employee from corporate funds, nor has it or any Affiliate offered,
paid, promised to pay, or authorised the payment of any money, or offered, given, promised
to give, or authorised the giving of anything of value, to any officer, employee or any other
person acting in an official capacity for any government entity, to any political party or
official thereof or to any candidate for political office (individually and collectively,
a “Government Official”) or to any person under circumstances where it
or such Affiliate knew or was aware of a high probability that all or a portion of such money
or thing of value would be offered, given or promised, directly or indirectly, to any Government
Official, for the purpose of: |
| (i) | influencing
any act or decision of such Government Official in his official capacity; |
| (ii) | inducing
such Government Official to do or omit to do any act in relation to his lawful duty; |
| (iii) | securing
any improper advantage; or |
| (iv) | inducing
such Government Official to influence or affect any act or decision of any government entity,
in order to assist it or any Group Member or their Affiliates in obtaining or retaining business
for or with, or directing business to it or such Group Member or their Affiliates or in connection
with receiving any approval of the transactions contemplated in this Agreement. |
| (b) | Neither
it nor any Affiliate has accepted anything of value for any of the purposes listed in subparagraphs
(i) to (iv) of paragraph (a) above. |
Neither it nor any Affiliate and no
person who owns or controls it or an Affiliate, is the subject of any sanctions administered by the OFAC, or by the U.S. Department of
State, or any sanctions imposed by the European Union (including under Council Regulation (EC) No. 194/2008), the United Nations
Security Council, Her Majesty's Treasury or any other relevant government or agency and is not engaged in any activities sanctionable
under the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010, as amended or the Iran Sanctions Act, as amended,
the Iran Threat Reduction and Syria Human Rights Act, the U.S. Trading With the Enemy Act, the U.S. International Emergency Economic
Powers Act, the U.S. United Nations Participation Act, the U.S. Syria Accountability and Lebanese Sovereignty Act, the Iran Freedom and
Counterproliferation Act, any of the foreign assets control regulations of the U.S. Department of the Treasury (including, without limitation,
31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto (collectively, “Sanctions”).
In any proceedings taken in its jurisdiction
of incorporation in relation to the Transaction Documents to which it is a party, each Obligor will not be entitled to claim for itself
or any of its assets immunity from suit, execution, attachment or other legal process.
No:
| (a) | corporate
action (in the case of any corporate Obligor), legal proceeding or other procedure or step
described in Condition 12.6 (Insolvency proceedings) of the Note Instrument; or |
| (b) | creditor’
process described in Condition 12.7 (Creditors’ process) of the Note Instrument,
has been taken or, to its knowledge, threatened in relation to any Obligor; and none of the
circumstances described in Condition 12.5 (Insolvency) of the Note Instrument applies
to any Obligor. |
| 13.25 | Money
Laundering Laws |
The operation of each corporate Obligor
and each Group Member is and has been conducted at all times in compliance with applicable financial record keeping and reporting requirements
and money laundering statutes in all jurisdictions in which each relevant Obligor or Group Member conducts business, the rules and
regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental
authority (collectively, “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental
authority or body or any arbitrator involving any Obligor or any Group Member with respect to Money Laundering Laws is pending, and no
such actions, suits or proceedings are threatened or contemplated.
| (a) | Save
for the Existing Facility and the Existing Security Documents, no indebtedness having been
incurred and no guarantee, indemnity or financial assistance having been provided by any
Obligor to any person other than a Group Member. |
| (b) | As
at the Closing Date, the aggregate amount of all sums (including without limitation the outstanding
principal amount of all loan(s) under the Existing Facility, all outstanding interest
accrued thereon, and all outstanding fees in connection with the Existing Facility) required
for all Obligors to discharge all their respective obligations owed to the Existing Facility
Lender (whether under the Existing Facility or otherwise) shall not exceed the Total Subscription
Amount. |
| 13.27 | Ownership
and holding structure |
| (a) | The
Guarantor is and remains the sole legal and beneficial owner of one hundred per cent. (100%)
of the number of issued shares in each of the BVI Cos. |
| (b) | The
Issuer is and remains the sole legal and beneficial owner of no less than one (1) Class A
Share and 33,628,926 Class A Shares represented by the Subject ADSs (Issuer –
Listco) which will be re-registered in the name of the Issuer pursuant to Clause 15.21(a)(iii). |
| (c) | BVI-1
is and remains the sole legal and beneficial owner of no less than 34,744,206 Class A
Shares. |
| (d) | BVI-2
is and remains the sole legal and beneficial owner of no less than 19,670,117 Class B
Shares. |
| (e) | BVI-3
is and remains the sole legal and beneficial owner of no less than 8,087,875 Class B
Shares. |
| (f) | The
Obligors collectively are and remain the legal and beneficial owners of, and the Charged
Shares (Listco) shall comprise: |
| (i) | as
at the Closing Date, no less than 34,744,207 Class A Shares, 33,628,926 Class A
Shares represented by the Subject ADSs (Issuer – Listco) which will be re-registered
in the name of the Issuer pursuant to Clause 15.21, and 27,757,992 Class B Shares; and |
| (ii) | any
Listco Share issued or granted by the Listco to, or acquired by, any Obligor pursuant to
any share option scheme (including the exercise of any share option under any such share
option scheme) or share award scheme adopted by the Listco. |
| (g) | The
Guarantor is and remains the sole beneficial owner of, directly or indirectly, (A) no
less than 10% of all voting rights in any shareholders’ meeting of the Listco; and
(B) all Class C Shares in issue for the time being. For
the purpose of Clause 13.27(g)(A), such voting rights shall: |
| (i) | be
represented by voting shares in issue in the Listco for the time being; and |
| (ii) | exclude
any voting rights exercisable by the guarantor directly or indirectly pursuant to the any
voting rights agreement, any concert party agreement, or any similar arrangement (including
without limitation the voting and consortium agreement dated 16 November 2023 executed
by the Guarantor, the BVI Cos (except BVI-1), Personal Group Limited, Success Flow International
Investment Limited and Choice Faith Group Holdings Limited, as supplemented by the supplemental
agreement dated December 28, 2023 (the “AIC Deed”). |
| (h) | The
Guarantor is and remains a member of the board of directors of the Listco. |
| (i) | The
Guarantor confirms that as of the date of this Agreement, the number of the Listco Shares
and ADSs owned by each of the Obligors and any other entities controlled by the Guarantor
is set out in Schedule 5 (Shareholding Table). |
| 13.28 | Security
and Listco Shares |
| (a) | Each
Obligor is not in breach of any applicable securities law or regulation, including the NASDAQ
Rules. |
| (b) | Save
for the Existing Security Documents, each Obligor is not under any contractual, regulatory
or other restriction which prevents it from (i) creating a security interest over any
asset expressed to be subject to the Transaction Security and (ii) disposing of any
asset expressed to be subject to the Transaction Security. |
| (c) | Save
for the Existing Security Documents, each Obligor has not sold, transferred, lent, assigned,
parted with its interest in or disposed of, granted any option in respect of or otherwise
dealt with any of its rights, title and interest in and to any asset expressed to be subject
to the Transaction Security, or agreed to do any of the foregoing (other than in accordance
with or pursuant to the Transaction Documents). |
| (d) | The
assets expressed to be subject to the Transaction Security: |
| (i) | are
subject to the Security created (or intended to be created) under the Transaction Security
Documents; |
| (ii) | are
free from all Security except for the Security created under the Existing Security Documents
and the Transaction Security; |
| (iii) | (in
respect of any shares in any BVI Co or any Listco Shares subject to the Transaction Security)
have been duly authorised and validly issued and are freely and fully transferable and not
subject to any pre-emptive rights or restrictions (contractual, regulatory or otherwise)
on transfer or disposal; and |
| (iv) | (in
respect of any shares in any BVI Co or any Listco Shares subject to the Transaction Security)
are fully paid and have no moneys or liabilities outstanding or payable in respect of any
of them. |
Each Obligor benefits by entering
into the Transaction Documents to which it is a party.
| (a) | None
of the Obligors or Group Members are materially overdue in the filing of any Tax returns
and no such person is overdue in the payment of any amount in respect of Tax. |
| (b) | No
claims or investigations are being, or are reasonably likely to be, made or conducted against
any Obligor or any Group Member with respect to Tax which would reasonably be expected to
have a Material Adverse Effect. |
| (c) | Each
corporate Obligor is resident for Tax purposes only in its jurisdiction of incorporation. |
| 13.31 | Security
and Financial Indebtedness |
| (a) | No
Security or Quasi-Security exists over all or any of the present or future assets of any
Group Member or any Obligor other than the security created under the Existing Security Documents
and the Transaction Security Documents. |
| (b) | No
Group Member and no Obligor has any Financial Indebtedness outstanding other than the Permitted
Financial Indebtedness. |
| (c) | All
Class A Shares and Class B Shares which are subject to Security in favour of the
Investor pursuant to any of the Transaction Security Documents are in registered form and
recorded on the Listco’s register of members maintained by the Listco Registrar in
the Cayman Islands. |
| (d) | All
shares which are subject to Security in favour of the Investor pursuant to any of the Transaction
Security Documents (i) have been duly authorised and are validly issued, fully paid,
and are non-assessable and not subject to any option to purchase or any pre-emptive rights
or similar rights, (ii) are not subject to any shareholders’ agreement, investor
rights agreements, lock up agreement, or any other similar agreements or any voting or other
contractual restrictions other than the Security and (iii) to the best of its knowledge,
freely transferable and not subject to any transfer restrictions (other than any transfer
restrictions imposed by the securities law of the relevant jurisdiction governing such transfer). |
| 13.32 | Legal
and beneficial ownership |
Each Obligor is the sole legal and
beneficial owner of the respective assets over which it purports to grant Security other than the security created under the Transaction
Security Documents.
Each Obligor is able to meet its obligations
and pay its debts as they fall due, and it has not admitted any inability to pay its debts as they fall due and has not suspended making
payments on any of its debts.
| 13.34 | Environmental
compliance |
| (a) | All
applicable Environmental Laws have been complied with in all respects and all applicable
Environmental Permits have been obtained if failure so to comply would reasonably be expected
to have a Material Adverse Effect. |
| (b) | No
Environmental Claim which, if adversely determined, would reasonably be expected to have
a Material Adverse Effect has (to the best of its knowledge and belief) been started or threatened
against any Group Member. |
Each representation and warranty set
out in Clauses 13.2 (Status) to 13.34 (Environmental compliance) are deemed to be repeated by the Obligors by reference
to the facts and circumstances then existing on the Closing Date and the first date of each Interest Period.
Each Obligor acknowledges that the
Investor has entered into the Transaction Documents in reliance on the representations and warranties in this Clause 13.
| 14. | INFORMATION
UNDERTAKINGS |
The undertakings in this Clause 14
remain in force during the period beginning on the date of this Agreement and ending on the date on which all present and future obligations
and liabilities (whether actual or contingent and whether owed in any other capacity whatsoever) of the Obligors to the Investor under
each Transaction Document have been unconditionally and irrevocably paid and discharged in full to the satisfaction of the Investor.
The Obligors shall supply to the Investor:
| (a) | as
soon as the same become available but in any event not more than ten (10) Business Days
after they are filed (or were due to be filed) with NASDAQ or any other securities exchange
on which the Listco’s ordinary shares are at any time listed for trading, copies of
the filed consolidated financial statements of the Listco; |
| (b) | as
soon as the same become available but in any event within one hundred and twenty (120) days
after the end of each of its financial years, the audited consolidated financial statements
of the Listco for that financial year; and |
| (c) | as
soon as the same become available but in any event within ninety (90) days after the end
of the first half of each of its financial years, the unaudited consolidated financial statements
of the Listco for that financial half-year. |
| 14.2 | Requirements
as to financial statements |
| (a) | Each
set of financial statements delivered by the Issuer pursuant to Clause 14.1 (Financial
statements) shall be certified by a director or an authorised signatory of the Listco
or the Guarantor (as the case may be) as giving a true and fair view of (in the case of any
such financial statements which are audited) or fairly representing (in the case of any such
financial statements which are unaudited) its financial condition as at the date at which
those financial statements were drawn up. |
| (b) | The
Obligors shall procure that each set of financial statements delivered pursuant to Clause
14.1 (Financial statements) is prepared using GAAP, accounting practices and financial
reference periods consistent with those applied in the preparation of the Original Financial
Statements. |
| 14.3 | Information:
miscellaneous |
Subject to Clause 14.5 (Notice
of the information to be provided by the Obligors), the Obligors shall supply to the Investor:
| (a) | all
documents dispatched by each Obligor and/or the Listco to its shareholders (or any class
of them) or its creditors generally at the same time as they are despatched provided that
any documents published on the publicly available website of NASDAQ shall be deemed to be
delivered; |
| (b) | promptly
upon becoming aware of them, the details of: |
| (i) | any
breach by any Obligor or any Group Member of any law, regulation, stock exchange rule or
NASDAQ Rules which has a Material Adverse Effect; and/or |
| (ii) | any
notification made by any Obligor or any Group Member to any stock exchange, regulatory authority
or similar body or to any other person in connection with the NASDAQ Rules of any event
or circumstance which has a Material Adverse Effect; |
| (c) | promptly
upon becoming aware of them, the details of any litigation, arbitration or administrative
proceedings which are current, threatened or pending against any Obligor or any Group Member,
and which, if adversely determined, might have a Material Adverse Effect; |
| (d) | promptly,
such information as the Investor may reasonably require about the Secured Property and compliance
of any Obligor with the terms of any Transaction Documents; |
| (e) | promptly
upon becoming aware of them, details of any claim, notice or other communication in respect
of any breach of any Environmental Law which has or would reasonably be expected to have
a Material Adverse Effect; |
| (f) | promptly,
such further information regarding the financial condition, business and operations of the
Issuer or any other Obligor or any Group Member as the Investor may reasonably request; and |
| (g) | promptly,
notice of any change in authorised signatories of any BVI Co signed by a director of such
BVI Co (whose specimen signature has previously been provided to the Investor) accompanied
by specimen signatures of any new authorised signatories. |
| 14.4 | Notification
of default |
| (a) | The
Obligors shall notify the Investor of any Default (and the steps, if any, being taken to
remedy it) promptly upon becoming aware of its occurrence. |
| (b) | Promptly
upon a request by the Investor, an Obligor shall supply to the Investor a certificate signed
by the Guarantor or (in the case of any BVI Co) one of its directors or senior officers on
its behalf certifying that no Default is continuing (or if a Default is continuing, specifying
the Default and the steps, if any, being taken to remedy it). |
| 14.5 | Notice
of the information to be provided by the Obligors |
The obligation of each Obligor to
provide any information to the Investor under Clause 14.3 (Information: miscellaneous) is to the extent that the provision of
such information does and will not contravene the NASDAQ Rules or other similar applicable laws and regulations, provided that as
and when the provision of such information to the Investor is no longer prohibited, the Obligor shall promptly provide such information
to the Investor in accordance with the terms of this Agreement.
| 14.6 | Access
to books and records |
Upon the request of the Investor,
each Obligor shall provide the Investor and any of its representatives, professional advisers and contractors with access to and permit
inspection by them of the assets, premises, books and records of any Group Member in each case at reasonable times and upon reasonable
notice.
| 14.7 | “Know
your customer” checks |
The Obligors shall promptly upon the
request of the Investor supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Investor
(including for the Investor on behalf of any prospective new Investor) in order for the Investor or any prospective new Investor to conduct
any “know your customer” or other similar procedures under applicable laws and regulations or any other assessment in relation
to, inter alia, credit risk, liquidity risk, market risk and/or legal compliance risk in respect of any Obligor or any Group Member.
The undertakings in this Clause 15
are made by each Obligor and shall remain in force during the period beginning on the date of this Agreement and ending on the date on
which all present and future obligations and liabilities (whether actual or contingent and whether owed in any other capacity whatsoever)
of the Obligors to the Investor under each Transaction Document have been unconditionally and irrevocably paid and discharged in full
to the satisfaction of the Investor.
The Obligors shall promptly:
| (a) | obtain,
comply with and do all that is necessary to maintain in full force and effect; and |
| (b) | supply
certified copies to the Investor of, |
any Authorisation required or desirable
under any law or regulation of a Relevant Jurisdiction to enable each Obligor to perform its obligations under the Transaction Documents,
to ensure the legality, validity, enforceability or admissibility in evidence in the Relevant Jurisdictions of the Obligors of any Transaction
Document and to carry on its business.
The Obligors shall comply in all respects
with all laws (including laws and regulations relating to the Environment and any applicable regulations promulgated from time to time
by SAFE, NDRC and any other Governmental Agency in the PRC) to which each Obligor or its assets may be subject, if failure so to comply
would has, or is likely to have a Material Adverse Effect or materially impair its ability to perform its obligations under the Transaction
Documents.
The Obligors shall ensure that its
and each Obligor’s payment obligations under the Transaction Documents rank and continue to rank at least pari passu with
the claims of all of the other unsecured and unsubordinated creditors of each Obligor (as the case may be), except for obligations mandatorily
preferred by law applying to companies generally.
| (a) | In
this Clause 15.4, “Quasi-Security” means the following arrangements or
transactions described in paragraph (d) below. |
| (b) | Save
for the Security created under the Transaction Security Documents, no Obligor shall create
or permit to subsist any Security over any of its assets. |
| (c) | Save
for the Security created under the Transaction Security Documents, no Obligor shall create
or permit to subsist any Security over any of the Charged Shares (BVI Cos) or any of the
Subject ADSs (Issuer – Listco) or any of the Charged Shares (Listco). |
| (i) | sell,
transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased
to or re-acquired by any Obligor; |
| (i) | sell,
transfer or otherwise dispose of any of its receivables on recourse terms; |
| (ii) | enter
into or permit to subsist any title retention arrangement; |
| (iii) | enter
into or permit to subsist any arrangement under which money or the benefit of a bank or other
account may be applied, set-off or made subject to a combination of accounts; or |
| (iv) | enter
into or permit to subsist any other preferential arrangement having a similar effect, |
in circumstances where the arrangement
or transaction is entered into primarily as a method of refinancing existing facilities, raising any other indebtedness, raising Financial
Indebtedness or of financing the acquisition of an asset.
| (a) | Each
Obligor shall not (and shall ensure that no other Group Member will) enter into a single
transaction or a series of transactions (whether related or not) and whether voluntary or
involuntary to sell, lease, transfer or otherwise dispose of any of its assets. |
| (b) | No
BVI Co shall issue any new shares. |
| (c) | Paragraph
(a) does not apply to: |
| (i) | any
sale, lease, transfer, assignment or other disposal of any asset made in the ordinary course
of business of the disposing entity and for good consideration negotiated at arm’s
length basis; |
| (ii) | any
sale, lease, transfer, assignment or other disposal with the prior written consent of the
Investor. |
| (a) | The
Obligors shall (and shall ensure that each Group Member will) pay and discharge all Taxes
imposed upon it or its assets within the time period allowed without incurring penalties
unless and only to the extent that: |
| (i) | such
payment is being contested in good faith; |
| (ii) | adequate
reserves are being maintained for those Taxes and the costs required to contest them have
been disclosed in the applicable latest financial statements; and |
| (iii) | such
payment can be lawfully withheld and failure to pay those Taxes does not have or might reasonably
be expected to have a Material Adverse Effect. |
| (b) | No
Obligor shall change its residence for Tax purposes. |
| (a) | No
Obligor shall enter into any amalgamation, demerger, merger, consolidation or corporate or
asset restructuring or reconstruction. |
| (b) | The
Obligors shall ensure that no other Group Member will enter into any amalgamation, demerger,
merger, consolidation or corporate or asset restructuring or reconstruction. |
| 15.8 | Acquisitions
and Joint Ventures |
No corporate Obligor shall (and each
Obligor shall ensure that no Group Member will):
| (a) | acquire
any company or any shares or securities or a business or undertaking (or, in each case, any
interest in any of them); |
| (b) | incorporate
a company; or |
| (c) | enter
into, invest in or acquire (or agree to acquire) any shares, stocks, securities or other
interest in any joint venture. |
Each Obligor shall ensure that any
loan granted or to be granted by any Group Member or a shareholder of any Obligor to the Obligor is subordinated to the Obligors’
obligations owed to the Investor and to the respective rights and claims of the Investor, in each case under or in connection with the
Transaction Documents, on terms satisfactory to the Investor.
| (a) | Each
Obligor shall (and shall ensure that each Group Member will) maintain insurances on and in
relation to its business and assets against those risks and to the extent as is usual for
companies carrying on the same or substantially similar business. |
| (b) | All
insurances must be with reputable independent insurance companies or underwriters. |
| 15.11 | Loans
and guarantees |
| (a) | No
Obligor shall, and the Obligors shall ensure that no Group Member will, make or allow to
subsist any loans, grant(s) any credit or give(s) or allow(s) to remain outstanding
any guarantee or indemnity (except as required under any of the Transaction Documents) to
or for the benefit of any person or otherwise voluntarily assume any liability, whether actual
or contingent, in respect of any obligation of any person. |
| (b) | Paragraph
(a) does not apply to: |
| (i) | any
loan or credit advanced by a Group Member to another Group Member, provided that,
if such loan or credit is advanced to the Issuer, it shall be Subordinated to the satisfaction
of the Investor; |
| (ii) | any
guarantee or indemnity by a Group Member in respect of the obligations of a Group Member
arising in the ordinary course of business of such Group Member; or |
| (iii) | any
loan, advance, guarantee or indemnity granted prior to the date of this Agreement and which
have been disclosed to the Investor in writing prior to the date of this Agreement. |
| 15.12 | Financial
Indebtedness |
| (a) | No
Obligor shall (and shall ensure that no Group Member will) incur any Financial Indebtedness. |
| (b) | Paragraph
(a) above does not apply to: |
| (i) | any
Financial Indebtedness incurred in the ordinary course of business of such Group Member; |
| (ii) | any
Financial Indebtedness incurred prior to the date of this Agreement and which have been disclosed
to the Investor in writing prior to the date of this Agreement; |
| (iii) | any
Financial Indebtedness advanced by an Obligor to another Obligor or any Group Member, provided
that it shall be Subordinated to the satisfaction of the Investor; or |
| (iv) | any
Financial Indebtedness incurred under the Transaction Documents. |
No corporate Obligor shall (and the
Obligors shall ensure that no Group Member will) enter into any transaction with any person except on arm’s length terms and for
full market value.
| 15.14 | Application
of FATCA |
No Obligor shall become a FATCA FFI
or a US Tax Obligor.
| 15.15 | Dividends
Distribution |
The corporate Obligors shall not:
| (a) | declare,
make or pay any dividend, charge, fee or other distribution (or interest on any unpaid dividend,
charge, fee or other distribution) (whether in cash or in kind) on or in respect of its issued
shares or share capital (as applicable) (or any class of thereof); |
| (b) | pay,
repay or prepay any principal, interest or other amount on or in respect of, or redeem, purchase
or defease any Financial Indebtedness owing to any direct or indirect shareholder of any
Obligor or any Group Member or any Affiliate of any such person; |
| (c) | repay
or distribute any dividend or share premium reserve; |
| (d) | pay
or allow any Obligor or any Group Member to pay any management, advisory or other fee to
or to the order of any direct or indirect shareholders of the Obligors or any Group Member
or any Affiliate of such person; or |
| (e) | redeem,
repurchase, defease, retire or repay any of its issued shares or share capital (as applicable)
or resolve to do so. |
| (a) | Each
Obligor shall (and shall procure that each Group Member will) promptly do all such acts or
execute all such documents (including but not limited to assignments, transfers, mortgages,
charges, notices and instructions) as the Investor may reasonably specify (and in such form
as the Investor may reasonably require in favour of the Investor or its nominee(s)): |
| (i) | to
perfect the Security created or intended to be created under or evidenced by the Transaction
Security Documents (which may include the execution of a mortgage, charge, assignment or
other Security over all or any of the assets which are, or are intended to be, the subject
of any Security) or for the exercise of any rights, powers and remedies of the Investor provided
by or pursuant to the Transaction Documents or by law; |
| (ii) | to
complete the Security Perfection Requirements within the time prescribed by the laws of any
Relevant Jurisdiction; |
| (iii) | to
confer on the Investor Security over any property and assets of that Obligor located in any
jurisdiction equivalent or similar to the Security intended to be conferred by or pursuant
to the Transaction Security Documents; and/or |
| (iv) | to
facilitate the realisation or enforcement of the assets which are, or are intended to be,
the subject of the Security. |
| (b) | The
Obligors shall (and shall procure that each Group Member will) take all such action as is
available to it (including making all filings and registrations) as may be necessary for
the purpose of the creation, perfection, protection or maintenance of any Security conferred
or intended to be conferred on the Investor by or pursuant to the Transaction Documents. |
| (a) | Each
Obligor shall not (and the Obligors shall procure that no Group Member or their Affiliates
will) take any action, directly or indirectly, that would result in a violation of the U.S.
Foreign Corrupt Practices Act, as amended, the United Kingdom Bribery Act 2010, as amended,
or any other applicable anti-bribery or anti-corruption laws, including, without limitation,
using any corporate funds for any unlawful contribution, gift, entertainment or other unlawful
payments to any foreign or domestic governmental official or employee from corporate funds,
and it shall not (and shall procure that no Affiliate will) offer, pay, promise to pay, or
authorise the payment of any money, or offer, give, promise to give, or authorise the giving
of anything of value, to any Government Official or to any person under circumstances where
it or such Affiliate knows or is aware of a high probability that all or a portion of such
money or thing of value would be offered, given or promised, directly or indirectly, to any
Government Official, for the purpose of: |
| (i) | influencing
any act or decision of such Government Official in his official capacity; |
| (ii) | inducing
such Government Official to do or omit to do any act in relation to his lawful duty; |
| (iii) | securing
any improper advantage; or |
| (iv) | inducing
such Government Official to influence or affect any act or decision of any government entity,
in order to assist any Obligor or any other Group Member or their Affiliates in obtaining
or retaining business for or with, or directing business to such Obligor or such Group Member
or their Affiliates or in connection with receiving any approval of the transactions contemplated
in this Agreement. |
| (b) | The
Obligors shall not (and shall procure that no Affiliate will) accept anything of value for
any of the purposes listed in sub-paragraphs (i) to (iv) of paragraph (a) above. |
| (a) | Each
Obligor shall ensure that no proceeds from the issue of the Note will, directly or indirectly,
be used, lent, contributed or otherwise made available to any person, for the purpose funding
or facilitating any activities or business or transactions in any country sanctioned by OFAC,
or for the purpose of funding any operations, or financing any investments in, or making
payments to, any person subject to any Sanctions and such use of proceeds will be in compliance
with and will not result in the breach by any person of the Sanctions. |
| (b) | Each
Obligor shall not (and shall procure that no Group Member or their Affiliates will) engage,
directly or indirectly, in any other activities that would result in a violation of Sanctions
by any person. |
The Issuer represents that all proceeds
from the issue of the Note shall be used in accordance with the purpose stated in Clause 3.1 (Purpose).
| (a) | The
Issuer shall, on or before the Closing Date, maintain the Securities Account. |
| (b) | The
Issuer shall not offer for sale or otherwise transfer, or pledge, mortgage or otherwise encumber
all or part of the Subject ADSs (Issuer – Listco) (and any Class A Shares represented
by those ADSs) (collectively, “Dealing”) unless such Dealing is (i) in
compliance with all applicable laws (including but not limited to the U.S. Securities Act);
and (ii) made with the prior written consent of the Investor or is otherwise permitted
under the Transaction Documents. |
| (c) | The
Issuer undertakes to the Investor that, without the prior written consent of the Investor: |
| (i) | no
instructions, save and except for instructions in relation to Clause 15.21 and the voting
rights or entitlement of dividends attached to the Subject ADSs (Issuer – Listco),
shall be given by the Issuer to the Broker in relation to the Subject ADSs (Issuer –
Listco) to be deposited into the Securities Account; and |
| (ii) | no
acts regarding (1) the cancellation, assignment or otherwise disposal of the Securities
Account; or (2) change of the Broker in relation to the Subject ADSs (Issuer –
Listco) shall be taken prior to the completion of cancellation of the Subject ADSs (Issuer
– Listco) as ADSs and re-registration as Class A Shares pursuant to Clause 15.21. |
| 15.21 | Conditions
Subsequent |
| (a) | In
respect of any and all BVI Co Shares and Listco Shares subject to any Security created under
the Existing Security Documents: |
| (i) | the
Obligors shall procure that: |
| (1) | on
the Discharge Date, the Existing Facility Lender shall deliver the original Deeds of Release
(Existing Security Documents), each duly executed by the Obligor which is a party thereto
and the Existing Facility Lender, to the Investor; |
| (2) | on
the Discharge Date, the Existing Facility Lender shall give instructions to Citigroup Global
Markets Inc. (the “Existing Custodian”) in its capacity as custodian for
the Existing Facility Lender to transfer and deposit the Subject ADSs (Issuer – Listco)
into the DTC participant account of BNP Paribas SA, New York Branch (for further credit to
the account of the Broker at BNP Paribas SA, New York Branch) in the form set out in Schedule
1 (Form of Letter of Instruction) of the Existing Facility Lender Deed of Undertaking),
and provide documentary evidence (which may be in the form of email) to the Investor that
such instructions have been given, and deliver such other documents and evidence as may be
reasonably requested by the Depository from the Existing Facility Lender in order to complete
such transfer and deposit; |
| (3) | within
two (2) Business Days after the Discharge Date, the Existing Facility Lender shall file
a notice of satisfaction or release of charge in respect of the Existing Security Documents
to which a BVI Co is a party with the BVI Registrar pursuant to the BVI Act and deliver to
the Investor documentary evidence (which may be in the form of email) that such filing has
been submitted to the BVI Registrar; |
| (4) | promptly
upon its receipt, the Existing Facility Lender shall deliver to the Investor all copies and
originals of the certificates of release issued by the BVI Registrar in respect of release
of such Existing Security Documents; |
| (5) | the
Broker shall complete the transfer of the Subject ADSs (Issuer – Listco) into the Securities
Account no later than fifteen (15) Business Days following the giving of the instructions
pursuant to Clause 15.21(a)(i)(2); |
| (ii) | subject
to the receipt by the Obligors of a copy of the fully executed Deeds of Release (Existing
Security Documents) from the Existing Facility Lender, the Obligors shall on the Discharge
Date, instruct their respective British Virgin Islands registered agents to update the register
of charges of the Obligors to reflect the release of the Existing Security Documents. The
Issuer shall deliver a certified copy of such updated register of charges of the Obligors
within four (4) Business Days after the Discharge Date; |
| (iii) | upon receipt of the Subject ADSs (Issuer
– Listco) in the Securities Account, the Issuer shall, at its own cost, promptly instruct
the Depositary and the Listco Registrar to cancel the Subject ADSs (Issuer – Listco)
as ADSs and re-register as Class A Shares on the books of the Listco Registrar in the
name of the Issuer (the “Cancellation and Re-registration”); |
| (iv) | the
Issuer shall procure the Cancellation and Re-registration to be completed no later than five
(5) Business Days following the giving of the instructions pursuant to Clause 15.21(a)(iii);
and |
| (v) | the
Obligors shall have done all such acts or executed all such documents (including but not
limited to notices and instructions) as the Investor may reasonably specify (and in such
form as the Investor may reasonably require in favour of the Investor or its nominee(s))
for the purpose of creating and perfecting the Security under (A) the Share Charges
(BVI Cos); and (B) the Share Charges (Listco). |
| (b) | The
Obligors shall procure that, within five (5) Business Days after any Class A Share
or Class B Share is issued or granted by the Listco to, or acquired by, any Obligor
(whether pursuant to any share option scheme (including the exercise of any share option
under any such share option scheme) or share award scheme adopted by the Listco, or otherwise),
such Obligor shall: |
| (i) | have
charged all such Class A Shares and Class B Shares in favor of the Investor; and |
| (ii) | have
done all such acts or executed all such documents (including but not limited to notices and
instructions) as the Investor may reasonably specify (and in such form as the Investor may
reasonably require in favour of the Investor or its nominee(s)) for the purpose of creating
and perfecting the Security under the Share Charges (Listco) over all such Class A Shares
and Class B Shares (as the case may be). |
| (c) | Upon
written notice from the Investor from time to time, each Obligor shall within twenty-five
(25) Business Days (in the case of the first such written notice from the Investor) or within
ten (10) Business Days (in the case of any subsequent written notice from the Investor),
or in each case, such longer period as agreed between the Investor and the Issuer (each acting
reasonably), at the cost and expense of the Investor, convert all or part of its Class A
Shares subject to Security into ADSs of the Listco and procure that all such ADSs are registered
by the Depositary in the name of the Investor for the benefit of the Issuer and subject to
Security not prohibited by the Depositary and in form and substance satisfactory to the Investor
and provide the Investor with all documents, notices, other evidence as required under the
relevant Transaction Security Document(s) and any security confirmations as may be required
by the Investor. |
| (d) | Upon
written notice from the Investor from time to time, the Obligors shall procure that the Listco
uses its best efforts to complete all such Conversions within twenty- five (25) Business
Days (in the case of the first such written notice from the Investor) or within ten (10) Business
Days (in the case of any subsequent written notice from the Investor), or in each case, such
longer period as agreed between the Investor and the Issuer (each acting reasonably), and
each Obligor shall (and shall procure that each Group Member will) promptly do all such acts
or execute all such documents (including assignments, transfers, mortgages, charges, notices
and instructions) as necessary or desirable for the purpose of the creation, perfection,
protection, maintenance or enforcement of any such Security, including the delivery of such
signed but undated documents set out or referred to in the Conversion Procedures or otherwise
deemed necessary or desirable by the Investor in connection with the Conversion or enforcement
of such Security. |
| (e) | The Obligors shall, within twenty-five
(25) Business Days (in the case of the first such written notice from the Investor) or within
ten (10) Business Days (in the case of any subsequent written notice from the Investor),
or in each case, such longer period as agreed between the Investor and the Issuer (each acting
reasonably), provide the Investor with the Depositary Confirmation Letter, the Registrar
Confirmation Letter, (where applicable) copies of signed but undated documents set out or
referred to in the Conversion Procedures as may be required under the Depositary Confirmation
Letter and the Listco Acknowledgement Letter, and any other document the Investor reasonably
requests in connection with any Conversion or other transaction in connection with the Depositary,
Class A Shares, Class B Shares and the ADSs contemplated under the Transaction
Documents, in each case, in form and substance satisfactory to the Investor. |
| (f) | The
Issuer shall, on or before the Closing Date, provide the Investor with the Listco Acknowledgment
Letter, in form and substance satisfactory to the Investor and substantially similar to the
agreed form Listco Acknowledgement Letter delivered pursuant to paragraph 4(d) of Schedule
4 (Conditions Precedent). |
| (g) | In
respect of the Personal Guarantee and each other Transaction Document which constitutes a
NBWD transaction, each relevant Obligor party hereto shall (or shall ensure that each other
relevant Transaction Obligor will): |
| (i) | submit
such Transaction Document for registration with SAFE within fifteen (15) PRC Business Days
of the date of such Transaction Document and promptly deliver to the Investor evidence in
writing of the same (in form and substance satisfactory to the Investor); |
| (ii) | in
respect of each Transaction Document which constitutes a NBWD transaction, use its best efforts
to complete the registration of such Transaction Document with SAFE; |
| (iii) | if
registration of such NBWD transaction has been completed with SAFE, use its best efforts
to complete any amendment registration with SAFE if so required by, and in accordance with,
applicable laws and regulation; and |
| a) | if
such registration referred to in paragraph (ii) or (iii) above is completed, promptly
deliver to the Investor evidence of the same (in form and substance satisfactory to the Investor);
or |
| b) | if
such registration (or amendment registration) referred to in paragraph (ii) or (iii) above
is rejected by SAFE: |
| (A) | promptly
notify the Investor of the same; and |
| (B) | but
becomes feasible subsequently (whether by reason of a change in law, regulation or the practice
of SAFE or otherwise), promptly submit the relevant Transaction Document for registration
with SAFE and use its best efforts to procure that such registration is completed and deliver
to the Investor evidence of the same (in form and substance satisfactory to the Investor). |
| 15.22 | New
issue of Listco Shares |
Each Obligor shall procure that:
| (a) | the
Listco will not (i) issue or grant any new or existing Listco Share or confer any rights
to obtain any new or existing Listco Shares to any Obligor or any person or entity controlled
by or connected with any Obligor (together with the Obligors, the “Obligor Entities”),
whether pursuant to any share option scheme or share award scheme or otherwise, except if
such issuance or grant is made pursuant to any share option scheme or share award scheme
which has been approved by all members of the board of directors of the Listco; or (ii) in
each financial year issue or grant any new or existing Listco Share or confer any rights
to obtain any new or existing Listco Shares which, accumulated to five percent (5%) or more
of the total issued and outstanding shares of the Listco (including all of the issued and
outstanding ordinary shares and preferred shares of the Listco on an as-converted basis)
as at the first (1st) calendar date of that financial year to any person or entity other
than the Obligor Entities; and |
| (b) | each
Obligor Entity will not accept or subscribe any Listco Share issued or granted to it in breach
of paragraph (a) above. |
| 15.23 | Anti-money
laundering |
Each Obligor shall (and shall procure
that each Group Member and their Affiliates will) conduct its operations at all times in compliance with applicable anti-money laundering
statutes of all jurisdictions, including, without limitation the Money Laundering Laws.
| (a) | The
Obligors shall not provide the Investor or its Affiliates with MNPI in any document or notice
required to be delivered pursuant to any Transaction Document or communication in connection
with any Transaction Document (each a “Communication”) without: |
| (i) | first
notifying the Investor in writing that the Communication that that Obligor is about to deliver
contains MNPI; and |
| (ii) | the
Investor giving written confirmation that it wishes to receive such information and instructing
that Obligor to whom such information shall be delivered. |
| (b) | If
the Investor has refused to receive such MNPI, the Obligors shall only deliver the Communication
to the extent that it does not contain MNPI, in which event the Obligors shall not be deemed
to have breached paragraph (a) above. |
| 15.25 | Environmental
compliance |
The Obligors shall, and shall ensure
that each other Group Member will, comply in all respects with all Environmental Laws, obtain and maintain all Environmental Permits
and take all reasonable steps in anticipation of known or expected future changes to or obligations under any Environmental Law or any
Environmental Permit if failure to so comply, obtain, maintain or take such steps has or would reasonably be expected to have a Material
Adverse Effect.
| 15.26 | Environmental
Claims |
The Obligors shall inform the Investor
in writing as soon as reasonably practicable upon becoming aware of:
| (a) | any
Environmental Claim which has been commenced or (to the best of its knowledge and belief)
is threatened against any Group Member; or |
| (b) | any
facts or circumstances which will or would reasonably be expected to result in any Environmental
Claim being commenced or threatened against any Group Member, |
| | |
| in each case where such Environmental Claim would
reasonably be expected, if determined against that Group Member, to have a Material Adverse
Effect. |
Each Obligor shall not issue any Bearer
Shares.
| 16. | CHANGES
TO THE PARTIES |
| 16.1 | Assignments
and transfers by the Investor |
The Investor (for the purpose of this
Clause 16, the “Existing Investor”) may, provided that at least five (5) Business Days’ prior written notice
is given to the Issuer:
| (a) | assign
any of its rights; or |
| (b) | transfer
by novation any of its rights and obligations, |
| | |
| under any Transaction Document to another entity
(the “New Investor”). |
| 16.2 | Existing
consents and waivers |
A New Investor shall be bound by any
consent, waiver, election or decision given or made by the Investor under or pursuant to any Transaction Document prior to the coming
into effect of the relevant assignment or transfer to such New Investor.
| 16.3 | Conditions
of assignment or transfer |
The consent of the Issuer is not required
for any assignment or transfer by the Existing Investor of any of its rights and obligations under the Transaction Documents.
| 16.4 | Limitation
of responsibility of the Investor |
| (a) | Unless
expressly agreed to the contrary, an Existing Investor makes no representation or warranty
and assumes no responsibility to a New Investor for: |
| (i) | the
legality, validity, effectiveness, adequacy or enforceability of the Transaction Documents
or any other documents; |
| (ii) | the
financial condition of any Obligor; |
| (iii) | the
performance and observance by any Obligor of its obligations under the Transaction Documents
or any other documents; or |
| (iv) | the
accuracy of any statements (whether written or oral) made in or in connection with any Transaction
Document or any other document, and any representations or warranties implied by law are
excluded. |
| (b) | Each
New Investor confirms to the Existing Investor that it: |
| (i) | has
made (and shall continue to make) its own independent investigation and assessment of the
financial condition and affairs of each Obligor and its related entities in connection with
its participation in this Agreement and has not relied exclusively on any information provided
to it by the Existing Investor in connection with any Transaction Document; and |
| (ii) | will
continue to make its own independent appraisal of the creditworthiness of each Obligor and
its related entities whilst any amount is or may be outstanding under the Transaction Documents
or any Note is in force. |
| (c) | Nothing
in any Transaction Document obliges the Existing Investor to: |
| (i) | accept
a re-transfer or re-assignment from a New Investor of any of the rights and obligations assigned
or transferred under this Clause 16; or |
| (ii) | support
any losses directly or indirectly incurred by the New Investor by reason of the non-performance
by any Obligor of its obligations under the Transaction Documents or otherwise. |
| 16.5 | Security
over Investor’s rights |
In addition to the other rights provided
to the Investor under this Clause 16, the Investor may, without consulting with or obtaining consent from any Obligor, at any time charge,
assign or otherwise create Security in or over (whether by way of collateral or otherwise) all or any of its rights under any Transaction
Document to secure obligations of the Investor including:
| (a) | any
charge, assignment or other Security to secure obligations to a federal reserve or central
bank; and |
| (b) | any
charge, assignment or other Security granted to any holders (or trustee or representatives
of holders) of obligations owed, or securities issued, by the Investor as security for those
obligations or securities, |
| | |
| except that no such charge, assignment or Security
shall: |
| (i) | release
the Investor from any of its obligations under the Transaction Documents or substitute the
beneficiary of the relevant charge, assignment or Security for the Investor as a party to
any of the Transaction Documents; or |
| (ii) | require
any payments to be made by an Obligor other than or in excess of, or grant to any person
any more extensive rights than, those required to be made or granted to the Investor under
the Transaction Documents. |
| 16.6 | Changes
to the Obligors |
No Obligor may assign any of its rights
or transfer any of its rights or obligations under the Transaction Documents or allow any interest in them to arise or be varied, except
with the prior written consent of the Investor.
| 17. | DISCLOSURE
OF INFORMATION |
| 17.1 | The
Investor may disclose: |
| (i) | any
of its Affiliates; and |
| (ii) | any
of the officers, directors, employees, professional advisers, auditors and Representatives
of the persons in paragraph (i) above, |
such Confidential Information as the
Investor shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this Clause 17.1(a) is
made aware in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information
except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality
of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;
| (i) | to (or through) whom it assigns or transfers (or may potentially
assign or transfer) all or any of its rights and/or obligations under one or more Transaction
Documents and to any of that person’s Affiliates, Representatives and professional
advisers; |
| (ii) | with (or through) whom it enters into
(or may potentially enter into), whether directly or indirectly, any sub-participation in
relation to, or any other transaction under which payments are to be made or may be made
by reference to, one or more Transaction Documents and/or the Issuer and to any of that person’s
Affiliates, Representatives and professional advisers; |
| (iii) | appointed by the Investor or by a
person to whom Clause 17.1(b)(i) or 17.1(b)(ii) above applies to receive communications,
notices, information or documents delivered pursuant to the Transaction Documents on its
behalf; |
| (iv) | who invests in or otherwise finances
(or may potentially invest in or otherwise finance), directly or indirectly, any transaction
referred to in Clause 17.1(b)(i) or 17.1(b)(ii); |
| (v) | to whom information is required or requested
to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation
or other regulatory authority or similar body, the rules of any relevant stock exchange
or pursuant to any applicable law or regulation; |
| (vi) | to whom information is required to
be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative
or other investigations, proceedings or disputes; |
| (vii) | to whom or for whose benefit that
the Investor charges, assigns or otherwise creates Security (or may do do) pursuant to Clause
16.6 (Security over Investor’s rights); |
| (ix) | with the consent of the Issuer; |
in each case, such Confidential Information
as the Investor shall consider appropriate if:
| (1) | in relation
to Clauses 17.1(b)(i) or 17.1(b)(ii) and 17.1(b)(iii), the person to whom the Confidential
Information is to be given has entered into a Confidentiality Undertaking except that there
shall be no requirement for a Confidentiality Undertaking if the recipient is a professional
adviser and is subject to professional obligations to maintain the confidentiality of the
Confidential Information; |
| (2) | in relation
to Clause 17.1(b)(iv), the person to whom the Confidential Information is to be given has
entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality
in relation to the Confidential Information they receive and is informed that some or all
of such Confidential Information may be price-sensitive information; |
| (3) | in relation
to Clauses 17.1(b)(v) and 17.1(b)(vi), the person to whom the Confidential Information
is to be given is informed of its confidential nature and that some or all of such Confidential
Information may be price-sensitive information except that there shall be no requirement
to so inform if, in the opinion of the Investor, it is not practicable so to do in the circumstances; |
| (c) | to any person appointed by the Investor
or by a person to whom Clause 17.1(b)(i) or 17.1(b)(ii) applies to provide administration
or settlement services in respect of one or more of the Transaction Documents including without
limitation, in relation to the trading of participations in respect of the Transaction Documents,
such Confidential Information as may be required to be disclosed to enable such service provider
to provide any of the services referred to in this Clause 17.1(c) if the service provider
to whom the Confidential Information is to be given has entered into a confidentiality agreement
substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement
Service Providers or such other form of confidentiality undertaking agreed between the Issuer
and the Investor; |
| (d) | to any rating agency (including its professional
advisers) such Confidential Information as may be required to be disclosed to enable such
rating agency to carry out its normal rating activities in relation to the Transaction Documents
and/or the Issuer if the rating agency to whom the Confidential Information is to be given
is informed of its confidential nature and that some or all of such Confidential Information
may be price-sensitive information. |
| 18.1 | Payments to the Investor |
| (a) | Each Obligor shall, on each date on which
it is required to make a payment under a Transaction Document, make the same available to
the Investor (unless a contrary indication appears in a Transaction Document) for value on
the due date at the time and in such funds specified by the Investor as being customary at
the time for settlement of transactions in the relevant currency in the place of payment. |
| (b) | Payment shall be made to such US Dollar
account maintained by or on behalf of the Investor with a bank (or such other US Dollar account
as the Investor may notify to the Issuer from time to time), details of which appear in the
Register of Noteholders at the close of business on the date immediately before the due date
for payment or by US Dollar cheque drawn on a bank acceptable to the Investor and mailed
to the registered address of the Investor if it does not have such account. |
| (c) | Unless a contrary indication appears
in a Transaction Document, an Obligor satisfies a payment obligation only when the Investor
receives the amount. |
| 18.2 | Payments by the Investor |
| (a) | On each date on which the Investor is
required to make a payment under a Transaction Document, the Investor shall make the same
available to the Issuer for value on the due date at the time and in such funds specified
by the Investor as being customary at the time for settlement of transactions in the relevant
currency in the place of payment. |
| (b) | Payment shall be made to such account
in the principal financial centre of the country of that currency with such bank as the Issuer
may notify to the Investor in the relevant Notice of Issuance. |
| 18.3 | Distributions to the Obligors |
The Investor, may, at its absolute
discretion to, apply any amount received by it for an Obligor in or towards payment (on the date and in the currency and funds of receipt)
of any amount due from that Obligor under the Transaction Documents or in or towards purchase of any amount of any currency to be so
applied.
| (a) | If the Investor receives a payment that
is insufficient to discharge all the amounts then due and payable by the Obligors under the
Transaction Documents, the Investor may apply that payment towards the obligations of the
Obligors under the Transaction Documents in the following order: |
| (i) | firstly, in or towards payment of any unpaid costs and expenses
of the Investor under the Transaction Documents; |
| (ii) | secondly, in or towards payment of any accrued interest
due but unpaid under the Transaction Documents; |
| (iii) | thirdly, in or towards payment of any principal due but
unpaid under the Transaction Documents; and |
| (iv) | fourthly, in or towards payment of any other sum due but
unpaid under the Transaction Documents. |
Such order is for illustration purpose
only and it is subject to the Investor’s absolute discretion to apply such payment as stated in Clause 18.3 (Distributions to
the Obligors).
| 18.5 | No set-off by the Obligors |
All payments to be made by any Obligor
under the Transaction Documents shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.
| (a) | Any payment which is due to be made on
a day that is not a Business Day shall be made on the next Business Day in the same calendar
month (if there is one) or the preceding Business Day (if there is not). |
| (b) | During any extension of the due date
for payment of any principal or Unpaid Sum under Clause 18.6(a), interest is payable on the
principal or Unpaid Sum at the rate payable on the original due date. |
| (a) | Subject to Clauses 18.7(b) and 18.7(e),
US dollars is the currency of account and payment for any sum due from the Issuer under any
Transaction Document. |
| (b) | A repayment of any sum under a Transaction
Document shall be made in the currency in which that sum is denominated, pursuant to this
Agreement on its due date. |
| (c) | Each payment of interest shall be made
in the currency in which the sum in respect of which the interest is payable was denominated,
pursuant to this Agreement, when that interest accrued. |
| (d) | Each payment in respect of costs, expenses
or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred. |
| (e) | Any amount expressed to be payable in a currency other than US dollars
shall be paid in that other currency. |
| 18.8 | Disruption to payment systems etc. |
If either the Investor determines (in
its discretion) that a Disruption Event has occurred or the Investor is notified by the Issuer that a Disruption Event has occurred:
| (a) | the Investor may, and shall if requested
to do so by the Issuer, consult with the Issuer with a view to agreeing with the Issuer such
changes to the operation or administration of the Note as the Investor may deem necessary
in the circumstances; |
| (b) | the Investor shall not be obliged to
consult with the Issuer in relation to any changes mentioned in Clause 18.8(a) if, in
its opinion, it is not practicable to do so in the circumstances and, in any event, shall
have no obligation to agree to such changes; |
| (c) | any such changes agreed upon by the Investor
and the Issuer shall (whether or not it is finally determined that a Disruption Event has
occurred) be binding upon the Parties as an amendment to (or, as the case may be, waiver
of) the terms of the Transaction Documents notwithstanding the provisions of Clause 24 (Amendments
and waivers); and |
| (d) | the Investor shall not be liable for
any damages, costs or losses whatsoever (including for negligence, gross negligence or any
other category of liability whatsoever but not including any claim based on the fraud of
the Investor) arising as a result of its taking, or failing to take, any actions pursuant
to or in connection with this Clause 18.8. |
While an Event of Default is continuing,
the Investor may set off any matured obligation due from an Obligor under the Transaction Documents (to the extent beneficially owned
by the Investor) against any matured obligation owed by the Investor to that Obligor, regardless of the place of payment, booking branch
or currency of either obligation. If the obligations are in different currencies, the Investor may convert either obligation at a market
rate of exchange in its usual course of business for the purpose of the set-off.
| 20.1 | Communications in writing |
Any communication to be made under
or in connection with the Transaction Documents shall be made in writing and, unless otherwise stated, may be made by fax, electronic
mail (“email”) or letter (where applicable).
The address, email address and fax
number (and the department or officer, if any, for whose attention the communication is to be made) of each Party for any communication
or document to be made or delivered under or in connection with the Transaction Documents is:
| (a) | in the case of the Issuer, that identified with its name below; |
| (b) | in the case of the Guarantor, that identified with its name below;
and |
| (c) | in the case of the Investor, that identified with its name below; |
or any substitute address, email address,
fax number or department or officer as the Issuer, the Guarantor or the Investor may notify each other by not less than five (5) Business
Days’ notice.
| (a) | Any communication or document made or
delivered by one person to another under or in connection with the Transaction Documents
will be effective: |
| (i) | if by way of fax, only when received in legible form; |
| (ii) | if by way of email, when sent provided
that the sender has not received a message that the email has not been received by the recipient;
or |
| (iii) | if by way of letter, only when it
has been left at the relevant address or five (5) Business Days after being deposited
in the post postage prepaid in an envelope addressed to it at that address; |
and, if a particular department or
officer is specified as part of its address details provided under Clause 20.2 (Addresses), if addressed to that department or
officer.
| (b) | Any communication or document to be made
or delivered to the Investor will be effective only when actually received by the Investor
and then only if it is expressly marked for the attention of the department or officer identified
with the Investor’s signature below (or any substitute department or officer as the
Investor shall specify for this purpose). |
| (c) | Any communication or document made or
delivered to the Issuer in accordance with this Clause 20 will be deemed to have been made
or delivered to the Obligors. |
| (d) | Any communication or document which becomes
effective, in accordance with Clauses 20.3(a) and (b), after 5:00 pm in the place of
receipt shall be deemed only to become effective on the following day. |
| 20.4 | Electronic communication |
| (a) | Any communication to be made between
the Parties under or in connection with the Transaction Documents may be made by electronic
mail or other electronic means. |
| (b) | Any electronic communication made between
the Parties will be effective only when actually received in readable form and in the case
of any electronic communication made by the Issuer to the Investor only if it is addressed
in such a manner as the Investor shall specify for this purpose. |
| (c) | Any electronic communication or document
which becomes effective, in accordance with paragraph (b) above, after 5.00 p.m. in
the place of receipt shall be deemed only to become effective on the following day. |
| (a) | Any notice given under or in connection with any Transaction Document
must be in English. |
| (b) | All other documents provided under or in connection with any Transaction
Document must be: |
| (ii) | if not in English, and if so required
by the Investor, accompanied by a certified English translation and, in this case, the English
translation will prevail unless the document is a constitutional, statutory or other official
document. |
| 21. | CALCULATIONS AND CERTIFICATES |
In any litigation or arbitration proceedings
arising out of or in connection with a Transaction Document, the entries made in the accounts maintained by the Investor are prima
facie evidence of the matters to which they relate.
| 21.2 | Certificates and determinations |
Subject to Clause 8.2(b), any certification
or determination by the Investor of a rate or amount under any Transaction Document is, in the absence of manifest error, conclusive
evidence of the matters to which it relates.
Any interest, commission or fee accruing
under a Transaction Document will accrue from day to day and is calculated on the basis of the actual number of days elapsed and a year
of three hundred and sixty-five (365) days or, in any case where the practice in the Relevant Interbank Market differs, in accordance
with that market practice.
| 21.4 | Rights and discretions of the Investor |
Notwithstanding any provision of any
Transaction Document to the contrary, the Investor is not obliged to expend or risk its own funds or otherwise incur any financial liability
in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it
has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably
assured to it.
If, at any time, any provision of the
Transaction Documents is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality,
validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of
any other jurisdiction will in any way be affected or impaired.
No failure to exercise, nor any delay
in exercising, on the part of the Investor, any right or remedy under the Transaction Documents shall operate as a waiver, of any such
right or remedy or constitute an election to affirm any of the Transaction Documents. No election to affirm any of the Transaction Documents
on the part of the Investor shall be effective unless it is in writing. No single or partial exercise of any right or remedy shall prevent
any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative
and not exclusive of any rights or remedies provided by law.
| 24. | AMENDMENTS AND WAIVERS |
No term of this Agreement may be amended
or waived without the prior written consent of the Investor, the Guarantor and the Issuer, and any such amendment or waiver will be binding
on all Parties.
Each Transaction Document may be executed
in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of the Transaction
Document.
| 26. | INDEMNITIES AND REIMBURSEMENT |
All indemnities and reimbursement obligations
in each Transaction Document are continuing and will survive the termination of that Transaction Document and the redemption of the Note.
This Agreement shall become effective
upon execution and shall continue in full force and effect until all liabilities and obligations under or pursuant to the Transaction
Documents have been irrevocably paid and discharged in full unless otherwise terminated in accordance with Clause 27.2 (Termination).
Subject to Clause 27.3 (Survival),
this Agreement may be terminated if any one or more of the Conditions Precedent set out in Clause 4.1 (Conditions Precedent) is
not fulfilled, satisfied or waived on or before the Long Stop Date.
| (a) | Clause 1 (Definitions and Interpretation),
Clause 7 (Tax Gross Up and Indemnities), Clause 10 (Other Indemnities), Clause
17 (Disclosure of Information), Clause 20 (Notices), Clause 27.3 (Survival),
Clause 29 (Governing Law) and Clause 30 (Enforcement) of this Agreement will
survive any termination of this Agreement. |
| (b) | This Clause 27 is without prejudice to any rights or obligations
which have accrued before termination of this Agreement. |
| 28.1 | Application to Transaction Documents |
If anything in Clause 17 (Disclosure
of Information) to Clause 28 (General) is inconsistent with a provision in another Transaction Document, then the provision
in the other Transaction Document prevails to the extent of the inconsistency for the purposes of that Transaction Document.
Each Obligor shall comply with all
conditions in any consent or waiver the Investor gives under or in connection with a Transaction Document.
| 28.3 | Discretion in exercising rights |
The Investor may exercise a right or
remedy or give or refuse its consent under or in connection with a Transaction Document in any way it considers appropriate (including
by imposing conditions).
The Investor may exercise its rights
or remedies under or in connection with a Transaction Document even if this involves a conflict of interests or the Investor has a personal
interest in their exercise.
To the extent permitted by law, each Transaction Document
prevails to the extent it is inconsistent with any law.
Any present or future law which varies
the obligations of an Obligor under or in connection with a Transaction Document with the result that the Investor’s rights or
remedies are adversely affected (including by way of delay or postponement) is excluded except to the extent that its exclusion is prohibited
or rendered ineffective by law.
Each Obligor shall promptly do anything
the Investor asks (such as obtaining consents, signing and producing documents and getting documents completed and signed):
| (a) | to enable the Investor to exercise its rights under or in connection
with any Transaction Document; |
| (b) | to bind the Obligor and any other person intended to be bound under
any Transaction Document; |
| (c) | to enable the Investor to register any power of attorney in any Transaction
Document or any similar power; or |
| (d) | to show whether the Obligor is complying with the Transaction Documents. |
This Agreement is governed by Hong Kong law.
| 30.1 | Jurisdiction of Hong Kong courts |
| (a) | The courts of Hong Kong have exclusive
jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement
(including any dispute regarding the existence, validity or termination of this Agreement)
(a “Dispute”). |
| (b) | The Parties agree that the courts of
Hong Kong are the most appropriate and convenient courts to settle Disputes and accordingly
no Party will argue to the contrary. |
| (c) | This Clause 30.1 is for the benefit of
the Investor only. As a result, the Investor shall not be prevented from taking proceedings
relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law,
the Investor may take concurrent proceedings in any number of jurisdictions. |
| (a) | Without prejudice to any other mode of
service allowed under any relevant law, (i) each Obligor irrevocably appoints VNET Group
Limited of 37/F., Tower 1 Metroplaza, Hing Fong Road, Kwai Fong, Hong Kong as its agent under
the Transaction Documents for service of process in any proceedings before the Hong Kong
courts in connection with any Transaction Document; and (ii) the Investor irrevocably
appoints Li & Partners of 22/F, World Wide House, Central, Hong Kong as its agent
under the Transaction Documents for service of process in any proceedings before the Hong
Kong courts in connection with any Transaction Document. |
| (b) | If any person appointed as process agent
under this Clause 30.2 is unable for any reason to so act, that Obligor or the Investor,
as the case may be, must immediately (and in any event within five (5) days of the event
taking place) appoint another agent on terms acceptable to the Investor. Failing this, the
Investor or Obligor, as the case may be, may appoint another process agent for this purpose. |
| (c) | Each Obligor and the Investor agrees
that failure by a process agent to notify it of any process will not invalidate the relevant
proceedings. |
| (d) | This Clause 30.2 does not affect any other method of service allowed
by law. |
Each of the Issuer and the Guarantor
irrevocably waives, to the extent permitted by applicable law, with respect to itself and its revenues and assets (irrespective of their
use or intended use), all immunity on the grounds of sovereignty or other similar grounds from:
| (b) | jurisdiction of any court; |
| (c) | relief by way of injunction or order for specific performance or
recovery of property; |
| (d) | attachment of its assets (whether before or after judgment); and |
| (e) | execution or enforcement of any judgment
or award to which it or its revenues or assets might otherwise be entitled in any proceedings
in the courts of any jurisdiction (and irrevocably agrees, to the extent permitted by applicable
law, that it will not claim any immunity in any such proceedings). |
This Agreement, together with the other
Transaction Documents and any agreements or documents referred to herein, sets out the entire agreement and understanding between the
Parties with respect to the subject matter contained herein and supersedes all prior agreements, understandings, negotiations and discussions
(whether oral or written) and all previous agreements in relation to the subject matter contained herein are hereby terminated and shall
have no further force or effect.
IN WITNESS whereof this Agreement
has been executed by the parties hereto and is intended to be and is hereby delivered by each Obligor as a deed on the date first above
written.
Schedule 1
PARTICULARS OF THE ISSUER
1. |
Name of company |
: |
GenTao Capital Limited |
|
|
|
|
2. |
Date of incorporation |
: |
5 February 2013 |
|
|
|
|
3. |
Company number |
: |
1759132 |
|
|
|
|
4. |
Place of incorporation |
: |
the British Virgin Islands |
|
|
|
|
5. |
Registered Office |
: |
Vistra Corporate Services Centre, Wickhams Cay II, Road Town, Tortola, VG1110, British Virgin Islands |
|
|
|
|
6. |
Director |
: |
CHEN Sheng |
|
|
|
|
7. |
Share capital |
: |
US$1.00 |
|
|
|
|
8. |
Issued share capital |
: |
one (1) share |
9. |
Shareholder |
: |
Name of Shareholder |
Number of share(s) held |
Percentage of shareholding |
|
|
|
|
|
|
|
|
|
CHEN Sheng |
one (1) |
100% |
Schedule 2
FORM OF NOTE INSTRUMENT
EXECUTION VERSION
Dated day
of 2024
GENTAO CAPITAL LIMITED
(as Issuer)
NOTE INSTRUMENT
constituting
12 PER CENT. SECURED GUARANTEED NOTE IN THE PRINCIPAL
AMOUNT UP TO US$24,000,000
TABLE OF CONTENTS
1. | DEFINITIONS
AND CONSTRUCTION |
1 |
| |
|
2. | CREATION AND ISSUE OF THE NOTE |
3 |
| |
|
3. | STATUS |
3 |
| |
|
4. | FORM AND TITLE |
3 |
| |
|
5. | TRANSFERS OF NOTE AND ISSUE OF NOTE CERTIFICATES |
4 |
| |
|
6. | DEPOSIT OF INSTRUMENT |
5 |
| |
|
7. | BENEFIT OF INSTRUMENT |
5 |
| |
|
8. | INTEREST |
5 |
| |
|
9. | PAYMENTS |
7 |
| |
|
10. | REDEMPTION, PURCHASE AND CANCELLATION |
7 |
| |
|
11. | TAXATION |
9 |
| |
|
12. | EVENTS OF DEFAULT |
10 |
| |
|
13. | REPLACEMENT OF NOTE CERTIFICATES |
14 |
| |
|
14. | NOTICES |
15 |
| |
|
15. | GOVERNING LAW AND ENFORCEMENT |
15 |
SCHEDULE 1
FORM OF NOTE CERTIFICATE |
SCH 1-1 |
|
|
SCHEDULE 2 FORM OF
TRANSFER FORM |
SCH 2-1 |
|
|
SCHEDULE 3 FORM OF
NOTEHOLDER REDEMPTION NOTICE |
SCH 3-1 |
|
|
SCHEDULE 4 FORM OF
EARLY REDEMPTION NOTICE |
SCH 4-1 |
|
|
SCHEDULE 5 EXISTING LEGAL
PROCEEDINGS |
SCH 5-1 |
THIS INSTRUMENT is made by way
of deed poll on
2024
BY:
GENTAO CAPITAL LIMITED, a BVI business
company incorporated under the laws of the British Virgin Islands with limited liability with company number 1759132 and with its registered
office at Vistra Corporate Services Centre, Wickhams Cay II, Road Town, Tortola, VG1110, British Virgin Islands (the “Issuer”).
IN FAVOUR OF:
THE PERSON for the time being and from time to time registered
as the holder of the Note.
WHEREAS:
(A) | The Issuer has, in accordance with its memorandum and articles of association
and by written resolutions of its sole director authorised to create and issue the Note constituted
as provided below. |
(B) | SHINING RICH HOLDINGS LIMITED 耀富控股有限公司,
a BVI business company incorporated under the laws of the British Virgin Islands with limited liability
with company number 1972405 and with its registered office at Portcullis Chambers, 4th Floor Ellen Skelton
Building, 3076 Sir Francis Drake Highway, Road Town, Tortola, British Virgin Islands VG1110 (the “Investor”),
is the initial Noteholder as at the date of this Note Instrument. |
NOW THIS INSTRUMENT WITNESSES AND THE ISSUER DECLARES as follows:
1. | DEFINITIONS AND CONSTRUCTION |
Terms defined in the Subscription Agreement
shall, unless otherwise defined in this Instrument or unless a contrary intention appears, bear the same meaning when used in this Instrument
and the following terms shall have the following meanings:
“Applicable Redemption Amount” |
has the meaning given to it in Condition 10.1 (Applicable Redemption Amount); |
|
|
“Conditions” |
means the terms and conditions of the Note as set out in this Instrument; |
|
|
“Default Redemption Price” |
has the meaning given to it in Condition 10.3.1; |
|
|
“Dispute” |
has the meaning given to it in Condition 15.2.1; |
|
|
“Early Redemption Date” |
has the meaning given to it in Condition 10.4.2; |
|
|
“Early Redemption Notice” |
has the meaning given to it in Condition 10.4.2; |
“Early Redemption Price” |
has the meaning given to it in Condition 10.4.1; |
|
|
“Events of Default” |
has the meaning given to it in Condition 12 (Events of Default); |
|
|
“Interest Payment Date” |
has the meaning given to it in Condition 8.3 (Payment of interest); |
|
|
“Interest Period” |
has the meaning given to it in Condition 8.2.1; |
|
|
“Issue Date” |
means the date on which closing of the issue of and the subscription
for the Note, occurs in accordance with Clause 6.1 of the Subscription Agreement; |
|
|
“Maturity Redemption Price” |
has the meaning given to it in Condition 10.2; |
|
|
“Note Certificate” |
has the meaning given to it in Condition 4.1 (Form); |
|
|
“Noteholder” |
means the person who is for the time being and from time to time registered
as the holder of the Note; |
|
|
“Noteholder Redemption Date” |
has the meaning given to it in Condition 10.3.2; |
|
|
“Noteholder Redemption Notice” |
has the meaning given to it in Condition 10.3.2; |
|
|
“Note” |
means the 12 per cent. secured guaranteed note in the principal amount
up to US$24,000,000 issued in minimum denomination of US$600,000 with the benefit of and subject to the terms and conditions set
out in the Subscription Agreement and this Instrument; |
|
|
“normal office hours” |
means 9:00 a.m. to 5:00 p.m. on a Business Day; |
|
|
“Registered Account” |
means the US Dollar account maintained by or on behalf of a Noteholder
with a bank (or such other US Dollar account as a Noteholder may notify to the Issuer from time to time), details of which appear
in the Register of Noteholders at the close of business on the date immediately before the due date for payment; |
|
|
“Registered Address” |
means a Noteholder’s address appearing in the Register of Noteholders
at that time; |
|
|
“Specified Office” |
means the office located at 10 Jiuxianqiao East Road, Chaoyang District,
Beijing 100016 |
“Subscription Agreement” |
means the subscription agreement
dated 2024
entered into among the Issuer, Chen Sheng, Beacon Capital Group Inc., Fast Horse Technology Limited, Sunrise Corporate Holding Ltd.
and the Investor, pursuant to which, among other matters, the Issuer agreed to issue the Note to the Investor (as modified, supplemented
or amended from time to time); |
|
|
“Transfer Form” |
has the meaning given to it in Condition 5.2 (Transfers); and |
|
|
“Unpaid Sum” |
means any sum due and payable but unpaid by any Obligor under any Transaction
Document. |
The provisions of Condition 1.2 (Construction)
of the Subscription Agreement shall apply to this Instrument as if they were set out in this Instrument. Unless a contrary indication
appears, any reference in this Instrument to:
| 1.2.1 | references to Conditions and Schedules are references to conditions
and schedules of or to this Instrument; and |
| 1.2.2 | references to principal, premium and
other payments payable by the Issuer shall be deemed also to refer to any additional amounts
which may be payable under Condition 11 (Taxation) or any undertaking or covenant
given in addition thereto or in substitution therefor pursuant to this Instrument. |
2. | CREATION AND ISSUE OF THE NOTE |
The Issuer hereby creates and issues the Note on the terms
set out in this Instrument.
The Note constitutes direct, secured,
guaranteed, unsubordinated and unconditional obligations of the Issuer and any integral part of the Note shall at all times rank pari
passu and without any preference or priority among themselves. The payment obligations of the Issuer under the Note shall, save for
such exceptions as may be provided by mandatory provisions of applicable laws and at all times rank at least equally with all of the
Issuer’s other present and future direct, unsubordinated and unconditional obligations. No application will be made for a listing
of the Note on any stock exchange or securities exchange.
The Note is issued in registered form
in the principal amount up to US$24,000,000 in minimum denomination of US$600,000. A Note certificate in the form set out in Schedule
1 (Form of Note Certificate) (the “Note Certificate”) will be issued to the Noteholder in respect of its
registered holding of Note. The Note Certificate will be numbered with an identifying number which will be recorded in the Register of
Noteholders which the Issuer will keep.
The registered holder of any Note will
(except as otherwise required by law) be treated as its absolute owner for all purposes (whether or not it is overdue and regardless
of any notice of ownership, trust or any interest in it or any writing on, the Note Certificate issued in respect of it) and no person
will be liable for so treating the holder.
5. | TRANSFERS OF NOTE AND ISSUE OF NOTE CERTIFICATE |
5.1 | Register of Noteholders |
The Issuer will maintain and cause
to be kept at the Specified Office the Register of Noteholders, in which shall be entered the names and addresses of the holders of the
Note and the particulars of the Note held by them and of all redemptions of the Note. The Noteholder shall be entitled to receive only
the number of Note Certificates that represent its entire holding. Any change in the Specified Office shall be notified to the Noteholder
by the Issuer in writing within three (3) Business Days after the change.
A Note is freely transferable. A Note
may be transferred by delivering the Note Certificate issued in respect of that Note with the transfer form in the form set out in Schedule
2 (Form of Transfer Form) (the “Transfer Form”) duly completed and signed to the Specified Office of the
Issuer or to its specified agent. No transfer of title to any Note will be effective unless and until the name and address of the new
holder of the Note together with the particulars of the Note held by it have been duly entered on the Register of Noteholders.
5.3 | Delivery of new Note Certificates |
| 5.3.1 | Each new Note Certificate to be issued
upon a transfer of a Note will, within five (5) Business Days of receipt by the Issuer
of the duly completed and signed Transfer Form, be made available for collection at the Specified
Office of the Issuer or, if so requested in the Transfer Form, be couriered at the risk of
the holder entitled to the Note (but free of charge to the holder) to the address specified
in the Transfer Form. |
| 5.3.2 | Where only part of the principal amount
of a Note in respect of which a Note Certificate is issued is to be redeemed, a new Note
Certificate in respect of the Note not so redeemed will, within five (5) Business Days
of delivery of the original Note Certificate to the Issuer, be made available for collection
at the Specified Office or, if so requested in the relevant form, be mailed by uninsured
mail at the risk of the holder entitled to the Note not so redeemed (but free of charge to
the holder) to the address of such holder appearing in the Register of Noteholders. |
5.4 | Formalities free of charge |
Registration of a redemption of the whole or any part of
the Note will be effected without charge by or on behalf of the Issuer.
No Noteholder may require the transfer
of a Note to be registered after such Note in respect of which a Noteholder Redemption Notice or an Early Redemption Notice has been
served by the Noteholder on the Issuer pursuant to Condition 10 (Redemption, Purchase and Cancellation).
The Issuer hereby acknowledges the
right of the Noteholder to the production of this Instrument and the Conditions and shall ensure that copies of this Instrument and the
Conditions are available for inspection by the Noteholder during normal office hours at the Specified Office.
This Instrument shall take effect as a deed poll for the
benefit of the Noteholder from time to time.
This Instrument shall enure to the
benefit of the Noteholder and its (and any subsequent) successors and assignees, each of which shall be entitled severally to enforce
this Instrument against the Issuer.
8.1 | Calculation of interest |
The rate of interest on the Note for
each Interest Period is the percentage rate of twelve per cent (12%) per annum. Any interest shall be calculated on the basis of the
actual number of days elapsed in a year of three hundred and sixty-five (365) days.
| 8.2.1 | Subject to the remaining provisions
of this Clause 8.2, each Interest Period for a Note shall be twelve (12) months (or such
other period as the Issuer and the Noteholder may agree) (the “Interest Period”). |
| 8.2.2 | An Interest Period for the Note shall not extend beyond the Maturity
Date. |
| 8.2.3 | Each Interest Period for the Note shall
start on the Issue Date or (if the Note has already been issued) on the last day of the preceding
Interest Period of the Note. |
| 8.2.4 | If an Interest Period would otherwise
end on a day which is not a Business Day, that Interest Period will instead end on the next
Business Day in that calendar month (if there is one) or the preceding Business Day (if there
is not). |
The Issuer shall pay accrued interest
on the Note on the last day of each Interest Period (each such date an “Interest Payment Date”).
| 8.4.1 | If the Issuer fails to pay any amount
payable by it under any Note or under a Transaction Document on its due date, interest shall
accrue on the Unpaid Sum from the due date up to the date of actual payment (both before
and after judgment) at a rate which is, subject to Clauses 8.4.2 and 8.4.38.4.3, three per
cent. (3%) per annum higher than the rate which would have been payable if the Unpaid Sum
had, during the period of non-payment, constituted the principal amount of the Note in the
currency of the Unpaid Sum for successive Interest Periods, each of a duration selected by
the Noteholder at its sole discretion. Any interest accruing under this Clause 8.4.1 shall
be immediately payable by the Issuer on demand by the Noteholder. |
| 8.4.2 | If any Unpaid Sum consists of the whole
or any part of the Note which became due on a day which was not the last day of an Interest
Period relating to the Note: |
| (a) | the first Interest Period for that Unpaid
Sum shall have a duration equal to the unexpired portion of the current Interest Period relating
to the Note; and |
| (b) | the rate of interest applying to the
Unpaid Sum during that first Interest Period shall be three per cent. (3%) per annum higher
than the rate which would have applied if the Unpaid Sum had not become due. |
| 8.4.3 | Default interest (if unpaid) arising
on an Unpaid Sum will be compounded with the Unpaid Sum at the end of each Interest Period
applicable to that Unpaid Sum but will remain immediately due and payable. |
| 8.4.4 | If an amount of principal, premium
(if any) or interest which is due on the Note is not paid in full, the Issuer will annotate
the Register of Noteholders with a record of the amount (if any) in fact paid. |
| 8.5 | Cessation of interest accrual |
The Note will cease to bear interest
from the due date for redemption, subject as provided in Condition 10.3 (Redemption on an Event of Default).
| 9.1.1 | Payment of principal, interest and all
other amounts payable under these Conditions will be made by transfer to the Registered Account
of the Noteholder or by US Dollar cheque drawn on a bank acceptable to the Noteholder and
mailed to the Registered Address of the Noteholder if it does not have a Registered Account.
The relevant Note Certificate will be surrendered at the Specified Office only after payment
of the principal, interest and any other amounts due on redemption have been made. |
| 9.1.2 | Interest on the Note due on an Interest
Payment Date will be paid to the holder who is, at the close of business on the date immediately
before the relevant Interest Payment Date shown on the Register of Noteholders. |
| 9.1.3 | When making payments to Noteholder,
fractions of one US cent will be rounded up to the nearest US cent, respectively. |
All payments are subject in all cases
to any applicable laws and regulations in the place of payment, but without prejudice to the provisions of Condition 11 (Taxation).
No commissions or expenses shall be charged to the Noteholder in respect of such payments.
10. | REDEMPTION, PURCHASE AND CANCELLATION |
10.1 | Applicable Redemption Amount |
In these Conditions:
The “Applicable Redemption
Amount” of a Note is the aggregate of (a) the principal amount outstanding on the whole or part of that Note to be redeemed;
(b) the outstanding interest accrued on the whole or part of that Note to be redeemed up to the date of redemption; and (c) any
other outstanding amount due but unpaid under the whole or part of that Note to be redeemed, rounded (if necessary) to two decimal places
with 0.005 being rounded upwards.
10.2 | Redemption at Maturity |
Unless previously redeemed, purchased
or cancelled, the Issuer shall redeem the whole of the Note on the Maturity Date at the Applicable Redemption Amount calculated from
the Issue Date to (and including) the Maturity Date (the “Maturity Redemption Price”). Any accrued and unpaid default
interest shall be payable by the Issuer to the Noteholder in addition to the Maturity Redemption Price and at the same time of payment
of the Maturity Redemption Price.
10.3 | Redemption upon an Event of Default |
| 10.3.1 | If the Issuer fails to rectify an Event
of Default under Condition 12 (Events of Default) and a written notice is served by
a Noteholder to the Issuer specifying the Event of Default, that Noteholder shall have the
right (but not the obligation) to demand the Issuer to, and the Issuer shall, redeem the
whole Note at the Applicable Redemption Amount calculated from the Issue Date to (and including)
the actual date of payment (the “Default Redemption Price”). Any accrued
and unpaid default interest shall be payable by the Issuer to the Noteholder in addition
to the Default Redemption Price and at the same time of payment of the Default Redemption
Price. |
| 10.3.2 | The redemption right of the Noteholder
provided under Condition 10.3.1 above shall be exercised by the Noteholder by delivering
to the Issuer a written notice signed by the Noteholder, substantially in the form set out
in Schedule 3 (Form of Noteholder Redemption Notice) (a “Noteholder
Redemption Notice”). Once delivered, the Noteholder Redemption Notice shall bind
the Issuer to redeem the whole or such part of the Note and the Default Redemption Price
and any accrued and unpaid default interest shall become immediately due and payable on the
date as set out in the Noteholder Redemption Notice (the “Noteholder Redemption
Date”). |
| 10.4 | Early redemption at the option of the Issuer |
| 10.4.1 | The Issuer shall have the right (but
not the obligation) to redeem the whole or such part of the Note prior to the Maturity Date
at the Applicable Redemption Amount calculated from the Issue Date to (and including) the
actual date of redemption (the “Early Redemption Price”). Any partial
redemption under this Condition 10.4 shall reduce the remaining principal amount of the Note
on a pro-rata basis. |
| 10.4.2 | The early redemption right of the Issuer
under this Condition 10.4 may be exercised by the Issuer by giving not less than thirty (30)
days’ (or such shorter period as the Noteholder may agree) prior written notice to
the Noteholder, substantially in the form set out in Schedule 4 (Form of Early Redemption
Notice) (an “Early Redemption Notice”). Once delivered, the Early
Redemption Notice shall bind the Issuer to redeem the whole or such part of the Note and
the Early Redemption Price shall become immediately due and payable on the date as set out
in the Early Redemption Notice (the “Early Redemption Date”). |
The Issuer and the Noteholder agree
that the Noteholder will calculate the amount payable by the Issuer under this Condition 10 and the amount calculated by the Noteholder
shall, in the absence of any manifest error, be conclusive evidence of such calculation.
On the Maturity Date, the Noteholder
Redemption Date or the Early Redemption Date (as the case may be), the Issuer shall, unconditionally and irrevocably, pay in full the
Maturity Redemption Price, the Default Redemption Price or the Early Redemption Price (as the case may be) to the Noteholder in accordance
with these Conditions.
Immediately after the Maturity Redemption
Price, the Default Redemption Price or the Early Redemption Price (as the case may be) has been unconditionally and irrevocably received
by the Noteholder in full, the Noteholder shall surrender the relevant Note Certificate to the Issuer. In the event that less than all
of the outstanding principal amount represented by a Note Certificate is redeemed, the Issuer shall promptly (but no later than the date
on which the Noteholder has actually received such amount) issue to the Noteholder a new Note Certificate evidencing any remaining principal
amount (where such new Note Certificate shall either: (i) be mailed by uninsured mail at the risk of the holder of the Note to the
address of such holder appearing on the Register of Noteholders or (ii) be made available for collection by the holder entitled
to the Note at the Specified Office), and update the Register of Noteholders accordingly and deliver to the Noteholder a certified true
copy of the updated Register of Noteholders.
Any expenses and costs (including the
attorney’s fees charged by the legal counsels to the Noteholder up to and including the Issue Date, other attorney’s fees,
commissions, and other expenses) and any applicable Taxes directly or indirectly arising out of, relating to, connected with or incidental
to the redemption of this Note contemplated under these Conditions shall be borne by the Issuer.
Any part of the Note which is redeemed
or purchased by the Issuer or any of its Subsidiaries will forthwith be cancelled and such part of the Note may not be reissued or resold.
All payments, whether of principal,
premium or otherwise made by the Issuer will be made free from any restriction or condition and be made without deduction or withholding
for or on account of any present or future Taxes, duties, assessments or governmental charges of whatever nature imposed or levied by
or on behalf of Hong Kong, the PRC or any authority thereof or therein having power to tax, unless deduction or withholding of such Taxes,
duties, assessments or governmental charges is compelled by law. In such event, the Issuer will pay such additional amounts as will result
in the receipt by the Noteholder of the net amounts after such deduction or withholding equal to the amounts which would otherwise have
been receivable by them had no such deduction or withholding been required.
The Note is, and it shall become, immediately
due and repayable in accordance with Condition 10.3 (Redemption upon an Event of Default), upon the occurrence of any of the following
events (“Event of Default”) which is continuing:
An Obligor does not pay on the due
date any amount payable pursuant to any Transaction Document at the place at and in the currency in which it is expressed to be payable.
| 12.2 | Breach of other obligations |
| 12.2.1 | An Obligor does not comply with any
provision of the Transaction Documents (other than those referred to in Conditions 12.1 (Non-payment)). |
| 12.2.2 | An Obligor does not comply with, or
an event of default (however described) occurs under, any provision or term of any deed,
agreement, instrument, contract, covenant or undertaking (whether oral or in writing) given
by it to or entered into by it with the Noteholder or any Affiliate of the Noteholder. |
| 12.2.3 | Any Group Member does not comply with,
or an event of default (however described) occurs under, any provision or term of any deed,
agreement, instrument, contract, covenant or undertaking (whether oral or in writing) given
by it to or entered into by it with the Noteholder or any Affiliate of the Noteholder. |
Any representation or statement made
or deemed to be made by any Obligor in any Transaction Document or any other document delivered by or on behalf of any Obligor under
or in connection with any Transaction Document is or proves to have been incorrect or misleading in any material respect when made or
deemed to be made.
| 12.4.1 | Any Financial Indebtedness of any Obligor
or any Group Member is not paid when due nor within any originally applicable grace period; |
| 12.4.2 | Any Financial Indebtedness of any Obligor
or any Group Member is declared to be or otherwise becomes due and payable prior to its specified
maturity as a result of an event of default (however described); |
| 12.4.3 | Any commitment for any Financial Indebtedness
of any Obligor or any Group Member is cancelled or suspended by a creditor of such Obligor
or Group Member (as the case may be) as a result of an event of default (however described);
or |
| 12.4.4 | Any creditor of any Obligor or any
Group Member becomes entitled to declare any Financial Indebtedness of such Obligor or such
Group Member (as the case may be) due and payable prior to its specified maturity as a result
of an event of default (however described), |
except where (A) the aggregate
amount of such Financial Indebtedness (i) with respect to any Obligor, is less than RMB1,000,000 (or its equivalent in any other
currency or currencies); and (ii) with respect to any Group Member, is less than 10% of the Total Subscription Amount; and (B) the
occurrence of any of the events in (a) to (d) above with respect to such Financial Indebtedness would not (subject to the Noteholder’s
reasonable discretion) adversely affect the share price of the Listco and/or market reputation of the Listco Group.
Any Obligor or any Group Member is
or is presumed or deemed to be unable or admits inability to pay its debts as they fall due, suspends making payments on any of its debts
or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (excluding the
Noteholder in its capacity as such) with a view to rescheduling any of its indebtedness.
| 12.5.1 | The value of the assets of the Obligors
(taken as a whole) is less than its liabilities (taken as a whole) (taking into account contingent
and prospective liabilities). |
| 12.5.2 | A moratorium is declared in respect of any indebtedness of any
Obligor or any Group Member. |
| 12.5.3 | The Guarantor or the Spouse is bankrupt
under the laws of any jurisdiction, except in the case of bankruptcy of the Spouse, the Guarantor
provides evidence in writing (in form and substance satisfactory to the Noteholder) that
the bankruptcy of the Spouse has no adverse effect on the ability of any Obligor to perform
its obligations under the Transaction Documents. |
| 12.5.4 | The Guarantor or the Spouse becomes
insolvent or is unable to pay his debts or fails or admits in writing its inability generally
to pay his debts as they become due, except in the case of insolvency of the Spouse, the
Guarantor provides evidence in writing (in form and substance satisfactory to the Noteholder)
that the insolvency of the Spouse has no adverse effect on the ability of any Obligor to
perform its obligations under the Transaction Documents. |
| 12.6 | Insolvency proceedings |
| 12.6.1 | Any corporate action, legal proceedings or other procedure or step
is taken in relation to: |
| (a) | the suspension of payments of any Obligor
or any Group Member, except where such suspension of payments is related to an existing corporate
action or legal proceeding as set out in Schedule 5 (Existing Legal Proceedings) and
would not (subject to the Noteholder’s reasonable discretion) adversely affect the
share price of the Listco and/or market reputation of the Listco Group, or reasonably be
expected to develop into the circumstances as set out in Condition 12.6.1(b) to (e) below; |
| (b) | a
moratorium of any indebtedness, winding-up, dissolution, administration, provisional supervision
or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of
any Obligor or any Group Member; |
| (c) | a composition or arrangement with any
creditor of any Obligor or any Group Member, or an assignment for the benefit of creditors
generally of any Obligor or any Group Member or a class of such creditors; |
| (d) | the appointment of a liquidator, receiver,
receiver and manager, administrator, administrative receiver, compulsory manager, provisional
supervisor or other similar officer in respect of any Obligor or any Group Member or any
of its assets; or |
| (e) | enforcement of any Security over any assets of any Obligor or any
Group Member, |
or any analogous procedure or step
is taken in any jurisdiction provided that it shall not be an Event of Default under this Condition 12.6: (A) if any such corporate
action, legal proceedings or other procedure or step is initiated by decisions at meetings of the shareholders or all members of the
board of directors of the Listco; or (B) if the aggregate value of any and all claims under any corporate action, legal proceedings
or other procedure or step does not exceed RMB1,000,000 (or its equivalent in other currency or currencies).
| 12.6.2 | The Guarantor or the Spouse is the
subject of a bankruptcy petition or order or any person has presented a petition for the
Guarantor’s or the Spouse’s bankruptcy or any order has been made for the Guarantor’s
or the Spouse’s bankruptcy under the laws of any jurisdiction or a trustee in bankruptcy
has been appointed or an application for that purpose has been made or a notice of intention
to appoint a trustee in bankruptcy has been given in accordance with any applicable law or
regulation in relation to the Guarantor or the Spouse. |
| 12.6.3 | Condition 12.6.2 shall not apply to
any bankruptcy petition or order against the Spouse provided the Guarantor provides evidence
in writing (in form and substance satisfactory to the Noteholder) that such bankruptcy petition
or order against the Spouse has no adverse effect on the ability of any Obligor to perform
its obligations under the Transaction Documents. |
Any expropriation, attachment, sequestration,
distress or execution affects (a) any assets of any Obligor or the Listco; or (b) assets of any Group Member in aggregate exceeding
10% of the amount of the Total Subscription Amount, and is not discharged with thirty (30) days.
| 12.8.1 | It is or becomes unlawful for any Obligor to perform any of its
obligations under the Transaction Documents. |
| 12.8.2 | Any Transaction Document ceases to
be in full force and effect or ceases to be legal, valid, binding, enforceable or effective
or is alleged by a party to it (other than the Noteholder) to be ineffective for any reason. |
| 12.8.3 | Any Security created or expressed to
be created or evidenced by the Transaction Security Documents ceases to be legal, valid,
binding, enforceable or effective or is alleged by a party to it (other than the Noteholder)
to be ineffective. |
| 12.9 | Repudiation and rescission of agreements |
Any Obligor rescinds or purports (in
writing) to rescind or repudiates or purports (in writing) to repudiate a Transaction Document or any Security or evidences an intention
to rescind or repudiate a Transaction Document.
| 12.10 | Cessation of business |
Any Obligor suspends or ceases to carry
on all or a material part of its business, or the Listco Group suspends or ceases to carry on all or a material part of the business
of the Listco Group taken as a whole.
The authority or ability of any Obligor
or any Group Member to conduct its business is substantially limited or wholly or substantially curtailed by any seizure, expropriation,
nationalisation, compulsory acquisition, intervention, restriction or other action by or on behalf of any governmental or regulatory
authority in relation to any Obligor or any Group Member or any of its assets or the shares in any Obligor or any Group Member (including
the displacement of all or part of the management of any Obligor or any Group Member) which has a Material Adverse Effect.
| 12.12 | Material Adverse Effect |
Any event or circumstance occurs which,
in the opinion of the Noteholder, has or is likely to have a Material Adverse Effect.
| 12.13 | Suspension or Cessation of Listing |
The ADSs cease to be listed or quoted
for more than ten (10) consecutive NASDAQ Trading Days on any of the Nasdaq Global Select Market, the Nasdaq Global Market or The
New York Stock Exchange (or any of their respective successors).
| 12.14 | Default under other Transaction Document |
An event occurs which is called an “event of default”
under any Transaction Document other than this Instrument.
| 12.15.1 | The Listco publicly announces an intention
to make, or has made, any material changes to its variable interest entity structure and
related arrangements in the PRC (whether voluntary or involuntary), as a result of which
the Listco’s or any Group Member’s benefits arising from the Control Documents
may reasonably be expected to be adversely and materially affected. |
| 12.15.2 | If (i) any Control Document becomes
illegal, void or unenforceable under the laws of the PRC after the date hereof, or (ii) any
new law of the PRC or amendment or interpretation of any existing laws of the PRC is promulgated
after the date hereof and, in each case, the Listco or any Group Member’s benefits
arising from the Control Documents may reasonably be expected to be adversely and materially
affected. |
Any litigation, arbitration, administrative,
governmental, regulatory or other investigations, proceedings or disputes are commenced or threatened in relation to the Transaction
Documents or the transactions contemplated in the Transaction Documents or against any Obligor or any Group Member or any of its assets
(or against the directors of any Group Member), in each case, which might reasonably be expected to have a Material Adverse Effect.
The Guarantor:
| (a) | ceases to fully comply with Clause 13.27(g) of the Subscription
Agreement; or |
| (b) | ceases to be a member of the board of directors
of the Listco, whether by way of his own resignation, removal by the Listco (or its shareholder(s)),
or otherwise. |
Any Group Member commits any act in violation of Clause
15.7 (Merger) of the Subscription Agreement.
| 13. | REPLACEMENT OF NOTE CERTIFICATES |
If any Note Certificate is mutilated,
defaced, destroyed, stolen or lost, it may be replaced at the Specified Office upon payment by the claimant of such costs as may be incurred
in connection therewith and on such terms as to evidence and indemnity as the Issuer may reasonably require. Mutilated or defaced Note
Certificates must be surrendered before replacements will be issued.
All notices to Noteholder shall be
validly given if delivered in accordance with Clause 20 (Notices) of the Subscription Agreement.
| 15. | GOVERNING LAW AND ENFORCEMENT |
This Instrument and any dispute or
claim arising out of or in connection with it or its subject matter, existence, negotiation, validity, termination or enforceability
shall be governed by and construed in accordance with Hong Kong law.
| 15.2 | Jurisdiction of Hong Kong Courts |
| 15.2.1 | The courts of Hong Kong have exclusive
jurisdiction to settle any dispute or claim arising out of or in connection with this Instrument
or its subject matter, existence, negotiation, validity, termination or enforceability (a
“Dispute”). |
| 15.2.2 | Subject to Condition 15.2.3 below,
the parties to this Instrument agree that the courts of Hong Kong are the most appropriate
and convenient courts to settle Disputes and accordingly the Issuer will not: |
| (a) | argue to the contrary; or |
| (b) | take any proceedings relating to a Dispute in any jurisdiction other
than Hong Kong. |
| 15.2.3 | This Condition 15.2 is for the benefit
of the Noteholder only. As a result, the Noteholder shall not be prevented from taking proceedings
relating to a Dispute in any other courts with jurisdiction or from contending that such
courts are appropriate and convenient. To the extent allowed by law, the Noteholder may take: |
| (a) | proceedings in any other court; and |
| (b) | concurrent proceedings in any number of jurisdictions. |
The Issuer irrevocably waives, to the
extent permitted by applicable law, with respect to itself and its revenues and assets (irrespective of their use or intended use), all
immunity on the grounds of sovereignty or other similar grounds from:
| (b) | jurisdiction of any court; |
| (c) | relief by way of injunction or order for specific performance or recovery
of property; |
| (d) | attachment of its assets (whether before or after judgment); and |
| (e) | execution or enforcement of any judgment
or award to which it or its revenues or assets might otherwise be entitled in any proceedings
in the courts of any jurisdiction (and irrevocably agrees, to the extent permitted by applicable
law, that it will not claim any immunity in any such proceedings). |
[The remainder of
this page is intentionally left blank]
Schedule 1
FORM OF NOTE CERTIFICATE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”) AND IT MAY NOT BE OFFERED OR SOLD IN THE
UNITED STATES OR TO U.S. PERSONS BY OR ON BEHALF OF ANY U.S. PERSON, UNLESS REGISTERED UNDER THE U.S. SECURITIES ACT OR AN EXEMPTION
FROM SUCH REGISTRATION IS AVAILABLE. THIS NOTE MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED TRANSFERRED EXCEPT: (I) AN
EXEMPTION FROM REGISTRATION UNDER THE U.S. SECURITIES ACT (IF AVAILABLE); OR (II) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT RELATING TO THIS NOTE IN ACCORDANCE WITH ANY OTHER APPLICABLE LAWS. EACH HOLDER AND BENEFICIAL OWNER, BY ITS
ACCEPTANCE OF THIS NOTE EVIDENCED HEREBY, REPRESENTS THAT IT UNDERSTANDS AND AGREES TO THE FOREGOING RESTRICTIONS.
Identifying
Number:
GENTAO CAPITAL LIMITED
(Incorporated in the
British Virgin Islands with limited liability)
12 per cent. secured
guaranteed note
in the principal amount
up to US$24,000,000 (the “Note”)
The Note in respect of which this Note Certificate
is issued, the identifying number of which is noted above, is in registered form of GENTAO CAPITAL LIMITED (the “Issuer”)
and is constituted by a Note instrument dated
2024 (the “Note Instrument”). The Note is subject to, and has the benefit of, that Note Instrument and the terms
and conditions set out therein.
The Issuer hereby certifies that
[Name] of [Address]
is, at the date hereof, entered in the Issuer’s
Register of Noteholders as the holder of the Note in the principal amount of US$24,000,000. For value received, the Issuer by such entry
promises to pay the person who appears at the relevant time in the Register of Noteholders as holder of the Note in respect of which
this Note Certificate is issued such amount or amounts as shall become due in respect of such Note in accordance with the terms and conditions
set out in the Note Instrument and each of the Issuer and the Noteholder mentioned above agree to comply with the terms and conditions
of the Note Instrument.
This Note Certificate is evidence of entitlement
only. Title to the Note passes only on due registration in the Register of Noteholders and only the duly registered holder is entitled
to payments on the Note in respect of which this Note Certificate is issued.
This Note Certificate is governed by, and shall
be construed in accordance with, the laws of Hong Kong.
Notes:
| 1. | The Note is transferable only in
whole or part in integral multiples of US$600,000 and this Note Certificate must be lodged,
together with the transfer form (which must be signed by the transferor or by a person authorised
to sign on behalf of the transferor), with the Issuer. |
| 2 | This Note Certificate must be surrendered
before any transfer, whether of the whole or any part of the Note comprised in it, can be
registered or any new Note Certificate issued in exchange. |
[The remainder of
this page is intentionally left blank]
IN WITNESS whereof the Issuer
has executed and delivered this Note Certificate as a deed poll on this day
of 2024.
EXECUTED AND DELIVERED AS A DEED
by |
) |
|
|
) |
|
|
) |
|
, its authorised director for and on behalf of |
) |
|
GENTAO CAPITAL LIMITED |
) |
|
|
) |
|
|
) |
|
|
) |
|
in the presence of: |
) |
Name: Chen Sheng |
|
|
Title: Director |
|
|
|
|
|
|
Signature of witness |
|
|
|
|
|
Name of witness: |
|
|
|
|
|
Address of witness: |
|
|
Schedule 2
Form of Transfer
Form
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
to
(Please print or type name and address of transferee)
US$[●] principal
amount of this Note in respect of which this Note Certificate is issued and all rights hereunder, hereby irrevocably constituting and
appointing as
attorney to transfer such principal amount of this Note in the register maintained by GENTAO CAPITAL LIMITED with full power of substitution.
Date:
Transferor’s authorised signature: |
|
Transferee’s authorised signature: |
|
|
|
|
|
|
Name: |
|
Name: |
Title: |
|
Title: |
Notes:
1. | This Transfer Form must be accompanied by such documents,
evidence and information as may be required pursuant to the conditions set out in the Note Instrument
and must be executed under the hand of the transferor or, if the transferor is a corporation,
either under its common seal or under the hand of two of its officers duly authorised in writing
and, in such latter case, the document so authorising such officers must be delivered with this
Transfer Form. |
2. | The signature of the person effecting a transfer shall conform
to any list of duly authorised specimen signatures supplied by the registered holder or be certified
by a notary public or in such other manner as the Issuer may require. |
Schedule 3
FORM OF NOTEHOLDER
REDEMPTION NOTICE
Date:
From: [Name of Noteholder]
To: GENTAO
CAPITAL LIMITED
Noteholder Redemption Notice in relation to
12 per cent. secured guaranteed note in the principal amount up to US$24,000,000 (the “Note”) issued by GENTAO CAPITAL LIMITED
(the “Issuer”) on [●] 2024 and the terms and conditions endorsed on the note instrument (the “Note Instrument”)
Dear Sirs:
We refer to the Note, and capitalised terms used
herein and not otherwise defined shall have their respective meanings as set forth in the Note Instrument.
We, the Noteholder, hereby deliver this Noteholder
Redemption Notice pursuant to the Note Instrument and hereby notify you, as the Issuer of the Note, of the exercise of the redemption
right on and you shall immediately redeem the following amount of the Note at the following Default Redemption Price which has or will
become immediately due and payable on the Noteholder Redemption Date (as set out below):
Noteholder Redemption Date: |
|
Aggregate principal amount of the Note to be redeemed: US$ |
|
Default Redemption Price: US$ |
|
You shall immediately transfer the abovementioned Default Redemption
Price in accordance with the provisions of the Note Instrument.
Signed for and on behalf of
[Name of Noteholder]
Title :
Schedule 4
FORM OF EARLY REDEMPTION
NOTICE
Date:
From: GENTAO CAPITAL LIMITED
To: [Name of Noteholder]
Early Redemption Notice in relation to 12
per cent. secured guaranteed note in the principal amount up to US$24,000,000 (the “Note”) issued by GENTAO CAPITAL LIMITED
(the “Issuer”) on [●] and the terms and conditions endorsed on the note instrument (the “Note Instrument”)
Dear Sirs:
We refer to the Note, and capitalised terms used
herein and not otherwise defined shall have their respective meanings as set forth in the Note Instrument.
We, the Issuer, hereby deliver this Early Redemption
Notice pursuant to the Note Instrument and hereby notify you, as the Noteholder of the Note, of the exercise of the early redemption
right on the following amount of the Note at the following Early Redemption Price which has or will become immediately due and payable
on the Early Redemption Date (as set out below):
Aggregate principal amount of the Note to be redeemed: US$ |
|
Early Redemption Price: US$ |
|
Signed for and on behalf of
GENTAO CAPITAL LIMITED
Schedule 5
EXISTING LEGAL PROCEEDINGS
Domestic Cases
Case number |
Plaintiff |
Defendant |
Nature |
Status |
Amount
claimed |
HKIAC/A20257 |
21
Vianet Ventures Limited |
1.
Diqi, Inc. |
Shareholder |
Ongoing |
US$2,700,000 |
|
|
2. Fountain, Inc. |
dispute |
|
|
|
|
3. Liao Shih-Wei |
|
|
|
|
|
4.
Liao Hui Chun |
|
|
|
(2023)
中国贸仲京字第010405 |
天津泰达科技投资股份有限公司(Tianjin
Teda Technology Investment Co., Ltd) |
1. Listco
2. VNET Technology Group Limited
3. 深圳云原生科技有限公司 |
Acquisition
agreement dispute |
Ongoing |
RMB60,683,705.7 |
|
|
(Shenzhen
Cloud Native Technology Co., Ltd) |
|
|
|
C20233066 |
广州琥珀安云一期创业投资合伙企业(有限合伙)
(Guangzhou Amber Anyun Phase I Venture Capital Partnership Enterprise (Limited Partnership)) |
1. Listco
2. VNET Technology Group Limited
3. 深圳云原生科技有限公司(Shenzhen
Cloud Native Technology Co., Ltd) |
Acquisition
agreement dispute |
Ongoing |
RMB53,939,517.33 |
Case
number |
Plaintiff |
Defendant |
Nature |
Status |
Amount
claimed |
S20231474 |
北京九合云腾投资中心(有限合伙)
(Beijing Jiuhe Yunteng Investment Center (Limited Partnership)) |
1. Listco
2. VNET Technology Group
Limited
3. 深圳云原生科技有限公司
(Shenzhen Cloud Native
Technology Co., Ltd) |
Acquisition
agreement dispute |
Ongoing |
RMB16,663,420 |
S20230657 |
南京瑞联新兴产业投资基金合伙企业
( 有
限 合 伙 ) (Nanjing Ruilian Emerging Industry Investment Fund Partnership Enterprise (Limited Partnership)) |
1. Listco
2. VNET Technology Group
Limited
3. 深圳云原生科技有限公司
(Shenzhen Cloud Native
Technology Co., Ltd) |
Acquisition
agreement dispute |
Ongoing |
RMB43,575,348.64 |
Pending |
北京众海嘉华股权投资合伙企业
(Beijing Zhonghai Jiahua Equity Investment Partnership Enterprise) |
1. Listco
2. VNET Technology Group
Limited
3. 深圳云原生科技有限公司
(Shenzhen Cloud Native
Technology Co., Ltd) |
Acquisition
agreement dispute |
Ongoing |
RMB8,615,220 |
Pending |
1. Listco
2. VNET Technology Group
Limited
3. 深
圳 云 原 生 科 技 有 限 公 司 (Shenzhen Cloud Native Technology
Co., Ltd) |
1. 黄启功
(Huang Qigong)
2. 王磊
(Wang Lei)
3. 杨乐
(Yang Le)
4. 刘寅
(Liu Yin)
5. 天津云思未来企业管理咨询合伙企业(
有限合伙) (Tianjin Yunsi Future Enterprise Management Consulting Partnership (Limited Partnership)) |
Acquisition
agreement dispute |
Ongoing |
RMB293,424,305.16 |
Case number |
Plaintiff |
Defendant |
Nature |
Status |
Amount
claimed |
|
|
6. 北京时速云企业管理咨询合伙企业
(有限合伙) (Beijing Speed Cloud Enterprise Management Consulting Partnership (Limited Partnership))
7. 天津泰达科技投资股份有限
公 司 (Tianjin Teda Technology Investment Co., Ltd)
8. 北京朗玛永安投资管理股份
公 司 (Beijing Langma Yong’an Investment Management Co., Ltd)
9. 广州琥珀安云一期创业投资合伙企业
(有限合伙) (Guangzhou Amber Anyun Phase I Venture Capital Partnership Enterprise (Limited Partnership))
10. 南京瑞联新兴产业投资基金合伙企业(有限合伙)
(Nanjing Ruilian Emerging Industry Investment Fund Partnership Enterprise (Limited Partnership))
11. 北京九合云腾投资中心
(有限合伙) (Beijing Jiuhe Yunteng Investment Center (Limited Partnership)) |
|
|
|
Case
number |
Plaintiff |
Defendant |
Nature |
Status |
Amount
claimed |
BIAC
016073 – (2023) |
北京峰赋科技有限公司
(Beijing Fengfu Technology Co., Ltd) |
1. 鹏博士电信传媒集团股份
有限公司 (Dr. Peng Telecom Media Group Co., Ltd)
2. 北京鹏博士大数据科技有
限公司 (Beijing Dr. Peng Big Data Technology Co., Ltd)
3. 北京电信通电信工程有限
公 司 (Beijing Telecom Communication Engineering Co.,
Ltd)
4. 长宽通信服务集团有限公
司 (Changkuan Communication Service Group Co., Ltd)
5. 北京长宽电信服务有限公
司
(Beijing Changkuan Telecom Service Co., Ltd)
6. 上海长宽通信服务有限公
司
(Shanghai Changkuan Communication Service Co., Ltd)
7. 北京百凌科技有限责任公司
(Beijing Bailing Technology Co., Ltd) |
Contractual dispute
|
Ongoing |
RMB221,033,022.25 |
Case number |
Plaintiff |
Defendant |
Nature |
Status |
Amount
claimed |
|
|
8. 北京天地久投资管理有限公
司 (Beijing Tiandi Jiu Investment Management Co., Ltd)
9. 长城宽带网络服务有限公司
(Great Wall Broadband Network Services Co., Ltd)
10. 广东长城宽带网络服务有限公司
(Guangdong Great Wall Broadband Network Service Co., Ltd)
11. 杨学平
(Yang Xueping) |
|
|
|
Pending |
昆山坤汇网络有限公司
(Kunshan Kunhui Network Co., Ltd.) |
1. 湖州致辰商务服务合伙企业(
有限合伙) (Huzhou Zhichen Business Service Partnership Enterprise (Limited Partnership))
2. 杨学平
(Yang Xueping) |
Contractual
dispute |
Ongoing |
RMB101,609,721.11 |
(2023)
京 0108 民初55194号 |
北京云思畅想科技有限公司
(Beijing TenxCloud Technology Co., Ltd.) |
1. 北京中恒博安科技有限公司
(Beijing Zhongheng Boan Technology Co., Ltd)
2. 李玲
(Li Ling)
3. 宫如亮
(Gong Ruliang) |
Contractual
dispute |
Ongoing |
RMB1,683,439.04 |
(2023)
京 0108 民初43645号 |
北京安腾思路科技发展有限公司
(Beijing Anteng Thinking Technology Development Co., Ltd.) |
北京云思畅想科技有限公司
(Beijing TenxCloud
Technology Co., Ltd) |
Contractual
dispute |
Ongoing |
RMB951,735 |
Case number |
Plaintiff |
Defendant |
Nature |
Status |
Amount
claimed |
2023
年朝预民字第85692号 |
北京世纪互联宽带数据中心有限公司(Beijing
VNET Broad Band Data Center Co., Ltd..) |
北京大唐高鸿数据网络技术有限公司
(Beijing Datang Gaohong Data Network Technology Co., Ltd) |
Contractual
dispute |
Ongoing |
RMB4,490,808.67 |
(2023)
沪仲案字第2032号 |
北京世纪互联宽带数据中心有限公司(Beijing
VNET Broad Band Data Center Co., Ltd..) |
上海亿人通信终端有限公司
(Shanghai Yiren Communication Terminal Co., Ltd) |
Contractual
dispute |
Ongoing |
RMB16,381,327 |
Pending |
北京世纪互联宽带数据中心有限公司(Beijing
VNET Broad Band Data Center Co., Ltd..) |
北京租之家网络科技股份有限
公 司 (Beijing Renzhijia Network Technology Co.,
Ltd) |
Contractual
dispute |
Ongoing |
RMB12,816,790.91 |
Pending |
北京世纪互联宽带数据中心有限公司(Beijing
VNET Broad Band Data Center Co., Ltd..) |
天津铜牛信息科技有限公司(Tianjin
Tongniu Information Technology Co., Ltd) |
Contractual
dispute |
Ongoing |
RMB4,712,160 |
(2022)
京 0105 民初43809号 |
北京世纪互联宽带数据中心有限公司深圳分公司(Beijing
VNET Broad Band Data Center Co., Ltd..) |
深圳华讯网络科技有限公司
(ECCOM Co., Ltd.) |
Contractual
dispute |
Ongoing |
RMB182,999 |
Pending |
北京世纪互联宽带数据中心有限公司深圳分公司(Beijing
VNET Broad Band Data Center Co., Ltd..) |
恒大地产集团有限公司(Evergrande
Real Estate Group Co., Ltd) |
Contractual
dispute |
Ongoing |
RMB968,505 |
(2023)
京仲裁字第11412号 |
北京世纪互联宽带数据中心有限公司(Beijing
VNET Broad Band Data Center Co., Ltd..) |
新物种(北京)科技有限公司
(New Species (Beijing) Technology Co., Ltd) |
Contractual
dispute |
Ongoing |
RMB26,469,955.27 |
Case number |
Plaintiff |
Defendant |
Nature |
Status |
Amount
claimed |
(2023)
京仲裁字第10309号 |
北京世纪互联宽带数据中心有限公司(Beijing
VNET Broad Band Data Center Co., Ltd..) |
卢云清
(Lu Yunqing) |
Contractual
dispute |
Ongoing |
RMB21,800,532.37 |
Pending |
北京世纪互联宽带数据中心有限公司深圳分公司
(Beijing VNET Broad Band Data Center Co., Ltd..) |
1. 中国联合网络通信有限公司
(China United Network Communications Co., Ltd)
2. 中国联合网络通信有限公司深圳市分公司
(China United Network Communications Co., Ltd.
Shenzhen Branch) |
Contractual
dispute |
Ongoing |
RMB5,596,000 |
(2022)
京仲案字第6453号) |
上 海 蓝 云 网 络
科 技 有 限 公 司
(Shanghai Blue Cloud Technology Co., Ltd.) |
山东宇兴建设有限公司
(Shandong Yuxing Construction Co., Ltd) |
Contractual
dispute |
Ongoing |
RMB11,592,764.92 |
(2023)
京0105 民初41234号 |
上海蓝云网络科技有限公司
(Shanghai Blue Cloud Technology Co., Ltd.) |
上海翔军计算机网络技术有限公司
(Shanghai Xiangjun Computer Network Technology Co., Ltd) |
Contractual
dispute |
Ongoing |
RMB501,695 |
(2023)
京仲案字第06944号 |
上海前沿蓝云网络科技有限公司(Shanghai
Edge Blue Cloud Network Technology Co., Ltd.) |
北京九芯科技有限公司(Beijing
Jiuxin Technology Co., Ltd) |
Contractual
dispute |
Ongoing |
RMB1,813,650 |
Case number |
Plaintiff |
Defendant |
Nature |
Status |
Amount
claimed |
(2023) 浙
0110 民
诉前调11758号 |
微来智慧科技(杭州)有限责任公司(Weilai
Smart Technology (Hangzhou) Co., Ltd) |
上海南洋万邦软件技术有限公
司 (Shanghai Nanyang Wanbang Software Technology Co., Ltd) |
Contractual
dispute |
Ongoing |
RMB1,820,696.96 |
(2023)
京0491 民初12142号 |
殷岳桢
(Yin Yuezhen) |
1. 北京小问智能科技有限公司
(Beijing Xiaowen Intelligent Technology Co., Ltd)
2. 中广影音(北京)文化传媒有限公司
(China Radio and Television (Beijing) Cultural Media Co., Ltd)
3. 微软
(中国) 有限公司
(Microsoft (China) Co., Ltd)
4. 北京信诺时代科技发展有限
公 司 (Beijing Sinoage Technology Corp)
5. 上海蓝云网络科技有限公司
(Shanghai Blue Cloud Technology Co., Ltd.) |
Copyright infringement |
Ongoing |
RMB230,000 |
(2024)
京仲案字第00392号 |
上海前沿蓝云网络科技有限公司
(Shanghai Edge Blue Cloud Network
Technology Co., Ltd.) |
深圳力维信息技术有限公司
(Shenzhen Liwei Control Technology Co., Ltd.) |
Contractual
dispute |
Ongoing |
RMB435,780.64 |
(2024)
京 03 执保185号 |
广
网 数 据 服 务 ( 北 京
) 有 限 公 司
(Guangwang Data Services (Beijing) Co., Ltd) |
北京世纪互联宽带数据中心有
限 公 司 (Beijing VNET Broad Band Data Center Co., Ltd..) |
Contractual
dispute |
Ongoing |
RMB2,500,000 |
Case number |
Plaintiff |
Defendant |
Nature |
Status |
Amount
claimed |
(2024)
京 0108 民初4059 |
湖北五五互联科技有限公司
(Hubei Wuwu Internet Technology Co., Ltd) |
北京世纪互联宽带数据中心有限公司
(Beijing VNET Broad Band Data Center Co.,
Ltd..) |
Shareholders
dispute |
Ongoing |
RMB1,293,574 |
(2023)
京仲案字第04749号(新增案号) |
上海前沿蓝云网络科技有限公司(Shanghai
Edge Blue Cloud Network Technology Co., Ltd.) |
北京金首翼科技发展有限公司
(Beijing Jinshouyi Technology Development
Co., Ltd) |
Contractual
dispute |
Closed |
RMB1,420,448.02 |
Shareholder Class Action Lawsuits
In December 2023 and January 2024, the Listco and certain
of the current and former executive officers of the Listco were named defendants in a putative securities class action lawsuit filed
in the United States District Court for the Southern District of New York in which the Listco has allegedly made materially false and/or
misleading statements and/or failed to disclose certain material information concerning its founder and co- chairperson, the Guarantor’s
financing activities and the related impact on the Listco’s business operations, captioned Semerak v. VNET Group, Inc., No. 23-cv-11187
(S.D.N.Y.). The lawsuit asserts claims under Section 10(b) and Section 20(a) of the U.S. Exchange Act.
IN WITNESS whereof this Instrument has been duly executed and delivered
by the Issuer as a deed poll on the date first above written.
EXECUTED AND DELIVERED
AS A DEED by |
)
) |
|
|
) |
, its authorised director for and on behalf of |
) |
|
GENTAO CAPITAL LIMITED |
)
)
)
) |
|
in the presence of: |
) |
Name: Chen Sheng |
|
|
Title: Director |
|
|
|
Signature of witness |
|
|
|
|
|
Name of witness: |
|
|
|
|
|
Address of witness: |
|
|
[Execution Page –
Note Instrument – Issuer]
Schedule 3
FORM OF NOTICE OF
ISSUANCE
From: GENTAO
CAPITAL LIMITED as the Issuer
To: SHINING
RICH HOLDINGS LIMITED 耀富控股有限公司
Date:
GENTAO CAPITAL LIMITED (the “Issuer”) – Subscription
Agreement dated [●] 2024 in relation to the 12 per cent. secured guaranteed Note in the principal amount up to US$24,000,000 (the
“Subscription Agreement”)
| 1. | We refer to the Subscription Agreement. This is the Notice of Issuance.
Terms defined in the Subscription Agreement have the same meaning in this Notice of Issuance
unless otherwise defined in this Notice of Issuance. |
| 2. | We wish to issue the Note on the following terms: |
|
Proposed Closing Date: |
2024 (or, if not a Business Day, the next Business Day) |
|
Principal Amount of
the Note: |
US$24,000,000 |
|
Minimum Denomination
of the Note: |
US$600,000 |
| 3. | We confirm that each Condition Precedent which must be satisfied on the
date of this Notice of Issuance is so satisfied. |
| 4. | The proceeds of the issuance should be credit to the following BVI-1 Account: |
|
Beneficiary Bank Name: |
[*****] |
|
Beneficiary
Bank Address: |
[*****] |
|
Beneficiary
bank SWIFT: |
[*****] |
|
Beneficiary
Name: |
[*****] |
|
Beneficiary
Account: |
[*****] |
|
Correspondent Bank Name: |
[*****] |
|
Correspondent
SWIFT: |
[*****] |
|
Correspondent Bank Account: |
[*****] |
|
Correspondent Bank Name
(if by remittance CHATS): |
[*****] |
|
Correspondent SWIFT
(if by remittance CHATS): |
[*****] |
|
Correspondent Bank Account
(if by remittance CHATS): |
BANK
CODE 018 |
|
Reference: |
Project Sorrento |
| 5. | This Notice of Issuance is irrevocable. |
[The remainder of this
page is intentionally left blank]
Yours faithfully,
Signed for and on behalf of
GENTAO CAPITAL LIMITED
Authorized Signatory
Schedule 4
CONDITIONS PRECEDENT
| (a) | A
certified copy of each BVI Co’s constitutional documents (i.e. certificate of incorporation,
certificate(s) of change of name (if any) and memorandum and articles of association)
and the following registers that are currently in full force and effect, namely, register
of members, register of directors and register of charges. |
| (b) | A
certified copy of the PRC resident identity card of each of the Guarantor and the Spouse. |
| (c) | A
Certificate of Good Standing issued by the Registrar of Corporate Affairs in the British
Virgin Islands attesting to the good standing of each BVI Co, such certificate being dated
no earlier than sixty (60) days prior to the date of this Agreement or such other date as
is acceptable to the Investor. |
| (d) | A
Certificate of Incumbency issued by the registered agent of each BVI Co confirming (amongst
other customary matters) the name of each person entered in the register of directors as
a director of the BVI Co, such certificate being dated no earlier than sixty (60) days prior
to the date of this Agreement or such other date as is acceptable to the Investor. |
| (e) | A
certified copy of resolutions of the board of directors of each BVI Co unanimously: |
| (i) | approving
the terms of, and the transactions contemplated by, the Transaction Documents to which it
is a party and resolving that it execute, deliver and perform the Transaction Documents to
which it is a party; |
| (ii) | authorising
a specified person or persons to execute the Transaction Documents to which it is a party
on its behalf; |
| (iii) | authorising
a specified person or persons, on its behalf, to sign and/or despatch all documents and notices
(including, if relevant, the Notice of Issuance) to be signed and/or despatched by it under
or in connection with the Transaction Documents to which it is a party; and |
| (iv) | resolving
that it is in the best interests of it to enter into the transactions contemplated by the
Transaction Documents to which it is a party. |
| (f) | A
certified copy of resolutions of the Guarantor as the sole shareholder of each BVI Co: |
| (i) | approving
the terms of, and the transactions contemplated by, the Transaction Document(s) to which
it is a party and resolving that it execute, deliver and perform the Transaction Document(s) to
which it is a party; |
| (ii) | authorising
a specified person or persons to execute the Transaction Document(s) to which it is
a party on its behalf; |
| (iii) | authorising
a specified person or persons, on its behalf, to sign and/or despatch all documents and notices
to be signed and/or despatched by it under or in connection with the Transaction Document(s) to
which it is a party; and |
| (iv) | resolving
that it is in the best interests of it to enter into the transactions contemplated by the
Transaction Document(s) to which it is a party. |
| (g) | A
specimen of the signature of each person authorised by the resolutions referred to in paragraphs
1(e) and 1(f) of this Schedule 4. |
| (h) | A
certificate from each corporate Obligor (signed by a director) confirming that the issue
of the Note or guaranteeing the obligations under the Transaction Documents and/or giving
of undertakings under the Transaction Documents, as appropriate, would not cause any limit
on borrowing, guaranteeing or similar limit binding on it to be exceeded and that each of
the Obligors would be able to pay its debts as they fall due. |
| (i) | A
certificate of an authorised signatory of each corporate Obligor certifying that each copy
document relating to it specified in paragraphs 1(a) to 1(h) of this Schedule 4
is correct, complete and in full force and effect and has not been amended or superseded
as at a date no earlier than the date of this Agreement and that any such resolutions have
not been revoked. |
| (a) | A
legal opinion in relation to the laws of Hong Kong from Li & Partners addressed
to the Investor in form and substance satisfactory to the Investor. |
| (b) | A
legal opinion in relation to the laws of the PRC from Global Law Office addressed to the
Investor in form and substance satisfactory to the Investor. |
| (c) | A
legal opinion in relation to the laws of the BVI from Harney Westwood & Riegels
addressed to the Investor in form and substance satisfactory to the Investor. |
| (d) | A
legal opinion in relation to the laws of the U.S. from Ortoli Rosenstadt LLP addressed to
the Investor in form and substance satisfactory to the Investor. |
| (e) | A
legal opinion in relation to the laws of the BVI with regard to the Transaction Security
from Harney Westwood & Riegels addressed to the Investor in form and substance satisfactory
to the Investor. |
| (f) | A
legal opinion in relation to the laws of the Cayman Islands with regard to the Transaction
Security from Harney Westwood & Riegels addressed to the Investor in form and substance
satisfactory to the Investor. |
| (g) | A
legal memorandum in relation to the laws of the U.S. with regard to the Transaction Security
from Ortoli Rosenstadt LLP addressed to the Investor in form and substance satisfactory to
the Investor. |
| (a) | The
original of each Transaction Document (other than the Registrar Confirmation Letter) and
any other documents as the Investor may require in connection with the completion, perfection
and registration of the Transaction Security created or intended to be created pursuant to
the Security Documents, where such documents are required to be delivered by the date falling
on or before the Closing Date, each duly executed by the parties to it (except the Investor). |
| (b) | Evidence
that any process agent referred to in Clause 30.2 (Service of process), has accepted
its appointment. |
| (c) | A
copy of the Conversion Procedures. |
| (d) | A
copy of the structure chart of the Listco Group and its Affiliates. |
| (e) | Any
other notices or documents required to be delivered, and any other acknowledgement or consent
required to be obtained, under any Transaction Documents, including but not limited to certified
copies of the filed and updated register of charges of the BVI Cos, and annotated register
of members of the BVI Cos according to the Transaction Documents, if applicable. |
| 4 | Other
documents and evidence |
| (a) | Evidence
to the satisfaction of the Investor that the costs and expenses then due from the Issuer
(including such costs and expenses pursuant to Clause 11 (Costs and expenses)) have
been paid or will be paid by the Closing Date. |
| (b) | A
copy of any other Authorisation or other document, opinion or assurance which the Investor
considers to be necessary or desirable (if it has notified the Issuer accordingly) in connection
with the entry into and performance of the transactions contemplated by any Transaction Document
or for the validity and enforceability of any Transaction Document. |
| (c) | Evidence
that all Security Perfection Requirements specified in the Transaction Security Documents
have been or will be completed in accordance with the terms of the Transaction Security Documents. |
| (d) | The
agreed form of the Listco Acknowledgement Letter substantially in the form and substance
satisfactory to the Investor. |
| (e) | All
other documents and evidence as reasonably requested by the Investor to enable it to conduct
any “know your customer” or anti-money laundering or other procedures under applicable
laws and regulations. |
Schedule 5
SHAREHOLDING TABLE
Name of the
entity |
Number
of
Listco
Shares held |
Percentage
of
Shareholding |
Class of
Listco
Shares |
Status
of
Conversion |
Issuer |
1 |
0.00% |
Class A |
Not
converted |
BVI-1 |
34,744,206 |
2.20% |
Class A |
Not
converted |
BVI-2 |
19,670,117 |
1.25% |
Class B |
Not
converted |
BVI-3 |
8,087,875 |
0.51% |
Class B |
Not
converted |
Personal Group
Limited |
4 |
0.00% |
Class A |
Not
converted |
769,486 |
0.05% |
Class B |
Not
converted |
60,000 |
0.00% |
Class C |
Not
converted |
Name of the entity |
Number
of
ADS held |
Number
of underlying
Class A Shares |
Percentage
of
Shareholding |
Issuer |
5,604,821 |
33,628,926 |
2.13% |
SIGNATURE PAGE
The Issuer
EXECUTED AND DELIVERED |
) | |
AS A DEED by |
) | |
|
) | |
, its authorised director for and on behalf of |
) | |
GENTAO CAPITAL LIMITED |
) | |
|
) | |
|
) | |
|
) | /s/
Chen Sheng |
in the presence of: |
) | Name: |
Chen Sheng |
|
| Title: |
Director |
/s/ Sun Yaxuan |
| |
|
Signature of witness |
| |
|
|
| |
|
Name of witness: Sun Yaxuan |
| |
|
|
| |
|
Address of witness: 10 Jiuxianqiao East Road, |
| |
|
Chaoyang District, Beijing 100016 |
| |
|
Contact details for notice:
Address: |
10 Jiuxianqiao East Road, Chaoyang District, Beijing 100016 |
Email: |
Josh.Chen@vnet.com |
Fax No.: |
+86 10 8456 4234 |
Attention: |
Chen Sheng |
[Execution Page –
Subscription Agreement – Issuer]
Declaration by CHEN Sheng
(
)
I hereby
acknowledge that I have been advised to seek independent legal advice before signing this Agreement and that I will be legally bound
by the terms of this Agreement upon signing. In signing this Agreement, I hereby also acknowledge that prior to signing this Agreement, I
have had this Agreement explained to me, understand the provision stated in this Agreement including all the terms and conditions contained
therein, and agreed to be bound by the same.
The Guarantor
SIGNED SEALED AND DELIVERED | ) | |
by | ) | |
CHEN SHENG ( ) | ) | |
| ) | |
| ) | |
| ) | /s/ Chen Sheng |
in the presence of: | ) | Name: CHEN SHENG ( ) |
/s/ Sun Yaxuan |
| |
|
Signature of witness |
| |
|
|
| |
|
Name of witness: Sun Yaxuan |
| |
|
|
| |
|
Address of witness: 10 Jiuxianqiao East Road, |
| |
|
Chaoyang District, Beijing 100016 |
| |
|
Contact details for notice:
Address: |
10 Jiuxianqiao East Road, Chaoyang District, Beijing 100016 |
Email: |
Josh.Chen@vnet.com |
Fax No.: |
+86 10 8456 4234 |
Attention: |
Chen Sheng |
[Execution Page –
Subscription Agreement – Guarantor]
BVI-1
EXECUTED AND DELIVERED |
) | |
AS A DEED by |
) | |
|
) | |
, its authorised director for and on behalf of |
) | |
BEACON CAPITAL GROUP INC. |
) | |
|
) | |
|
) | |
|
) | /s/
Chen Sheng |
in the presence of: |
) | Name: |
Chen Sheng |
|
| Title: |
Director |
/s/ Sun Yaxuan |
| |
|
Signature of witness |
| |
|
|
| |
|
Name of witness: Sun Yaxuan |
| |
|
|
| |
|
Address of witness: 10 Jiuxianqiao East Road, |
| |
|
Chaoyang District, Beijing 100016 |
| |
|
Contact details for notice:
Address: |
10 Jiuxianqiao East Road, Chaoyang District, Beijing 100016 |
Email: |
Josh.Chen@vnet.com |
Fax No.: |
+86 10 8456 4234 |
Attention: |
Chen Sheng |
[Execution Page –
Subscription Agreement – BVI-1]
BVI-2
EXECUTED AND DELIVERED |
) | |
AS A DEED by |
) | |
|
) | |
, its authorised director for and on behalf of |
) | |
FAST HORSE TECHNOLOGY LIMITED |
) | |
|
) | |
|
) | |
|
) | /s/
Chen Sheng |
in the presence of: |
) | Name: |
Chen Sheng |
|
| Title: |
Director |
/s/ Sun Yaxuan |
| |
|
Signature of witness |
| |
|
|
| |
|
Name of witness: Sun Yaxuan |
| |
|
|
| |
|
Address of witness: 10 Jiuxianqiao East Road, |
| |
|
Chaoyang District, Beijing 100016 |
| |
|
Contact details for notice:
Address: |
10 Jiuxianqiao East Road, Chaoyang District, Beijing 100016 |
Email: |
Josh.Chen@vnet.com |
Fax No.: |
+86 10 8456 4234 |
Attention: |
Chen Sheng |
[Execution Page –
Subscription Agreement – BVI-2]
BVI-3
EXECUTED AND DELIVERED |
) | |
AS A DEED by |
) | |
|
) | |
, its authorised director for and on behalf of |
) | |
SUNRISE CORPORA TE HOLDING LTD. |
) | |
|
) | |
|
) | |
|
) | /s/
Chen Sheng |
in the presence of: |
) | Name: |
Chen Sheng |
|
| Title: |
Director |
/s/ Sun Yaxuan |
| |
|
Signature of witness |
| |
|
|
| |
|
Name of witness: Sun Yaxuan |
| |
|
|
| |
|
Address of witness: 10 Jiuxianqiao East Road, |
| |
|
Chaoyang District, Beijing 100016 |
| |
|
Contact details for notice:
Address: |
10 Jiuxianqiao East Road, Chaoyang District, Beijing 100016 |
Email: |
Josh.Chen@vnet.com |
Fax No.: |
+86 10 8456 4234 |
Attention: |
Chen Sheng |
[Execution Page –
Subscription Agreement – BVI-3]
The Investor
SHINING RICH HOLDINGS LIMITED
By: |
/s/ Wang Peng |
|
Name: |
Wang Peng |
|
Title: |
Authorised Signatory |
|
Contact details for notice:
Email: |
workforpapper@l63.com |
Attention: |
Fang Li/ Tong Lin |
[Execution
Page – Subscription Agreement – Investor]
Exhibit 99.23
EXECUTION VERSION
Dated the 28th
day of June 2024
GENTAO CAPITAL LIMITED
(as Issuer)
and
BEACON CAPITAL GROUP
INC.
(as BVI-1)
and
BOLD ALLY (CAYMAN) LIMITED
(as Existing Facility Lender)
and
SHINING RICH HOLDINGS
LIMITED
耀富控股有限公司
(as Investor)
This deed of undertaking (this “Deed”) is executed
on the 28th day of June 2024
BY AND AMONG:
(1) | GENTAO CAPITAL LIMITED, a BVI business company incorporated under
the laws of the British Virgin Islands with limited liability with company number 1759132 and with its
registered office at Vistra Corporate Services Centre, Wickhams Cay II, Road Town, Tortola, VG1110,
British Virgin Islands (the “Issuer”); |
(2) | BEACON CAPITAL GROUP INC., a BVI business company incorporated
under the laws of the British Virgin Islands with limited liability with company number 469757 and with
its registered office at Vistra Corporate Services Centre, Wickhams Cay II, Road Town, Tortola, VG1110,
British Virgin Islands (“BVI-1”); |
(3) | BOLD ALLY (CAYMAN) LIMITED, an exempted company incorporated
under the laws of the Cayman Islands with limited liability with company number 363711 and with its
registered office at Walkers Corporate Limited, 190 Elgin Avenue, George Town, Grand Cayman KY1-9008,
Cayman Islands (the “Existing Facility Lender”); and |
(4) | SHINING RICH HOLDINGS LIMITED 耀富控股有限公司,
a BVI business company incorporated under the laws of the British Virgin Islands with limited liability
with company number 1972405 and with its registered office at Portcullis Chambers, 4th Floor Ellen Skelton
Building, 3076 Sir Francis Drake Highway, Road Town, Tortola, British Virgin Islands VG1110 (the “Investor”), |
(each a “Party” and collectively the “Parties”).
WHEREAS:
(A) | On 19 August 2021, the Issuer as borrower and the Existing Facility
Lender as lender entered into a facility agreement as amended and restated from time to time, under
which the Existing Facility Lender made available a term loan facility in the principal amount of US$50,250,000
(the “Existing Facility”). As at the date of this Deed, the outstanding principal
amount of the loan under the Existing Facility amounts to US$23,853,798.68 (the “Outstanding
Principal”). |
(B) | Pursuant to a subscription agreement (the “Subscription Agreement”)
entered into or to be entered into by, among others, the Issuer and the Investor, the Issuer shall issue
to the Investor a secured guaranteed note in the principal amount up to US$24,000,000 (the “Note”),
the proceeds of which shall be utilised to, among other things, repay the Outstanding Principal, any
accrued interest thereon and any fees, costs and expenses in connection with the Existing Facility which
are outstanding as at the closing date of the subscription of the Note (the “Closing Date”). |
(C) | The Parties agree to enter into this Deed under which the Existing Facility
Lender agrees and undertakes to the Investor that it shall promptly take steps to release all security
interests created over the assets of the Obligors under the Existing Facility pursuant to the terms
of this Deed. |
THIS DEED WITNESSETH as follows:
1. | DEFINITIONS AND INTERPRETATION |
Unless otherwise specified, capitalised
words and expressions used in this Deed (including its Recitals) shall have the following meanings:
“ADS” means an American
depositary share of the Listco (each representing six (6) Class A Shares in the Listco (subject to adjustment for share splits,
share consolidations or other similar events that have a diluting or concentrative effect on the ADS, provided that no such adjustment
shall be made if (and to the extent that) the Listco and/or the Depositary, pursuant to their authority (if any), elects to adjust the
number of Class A Shares represented by each ADS such that the price and other terms of the ADS will not be affected by any such
diluting or concentrative event)), which are listed on the Nasdaq Global Select Market (Stock Code: Nasdaq: VNET).
“Broker” means Huatai
Financial Holdings (Hong Kong) Limited.
“Business Day” means
a day (other than Saturday or Sunday) on which banks are open for general business in the British Virgin Islands, Cayman Islands, Hong
Kong and New York City.
“BVI Act” means
the British Virgin Islands Business Companies Act 2004, as amended and/or supplemented from time to time.
“BVI Cos” means
the Issuer, BVI-1, BVI-2 and BVI-3 collectively, and “BVI Co” means any one of them.
“BVI Registrar”
means the Registrar of Corporate Affairs of the British Virgin Islands.
“BVI-2” means Fast
Horse Technology Limited, a BVI business company incorporated under the laws of the British Virgin Islands with limited liability with
company number 368150 and with its registered office at Vistra Corporate Services Centre, Wickhams Cay II, Road Town, Tortola, VG1110,
British Virgin Islands.
“BVI-3” means Sunrise
Corporate Holding Ltd., a BVI business company incorporated under the laws of the British Virgin Islands with limited liability with
company number 1622848 and with its registered office at Kingston Chambers P.O. Box 173, Road Town, Tortola, British Virgin Islands.
“Class A Shares”
means class A ordinary shares in the capital of the Listco which has a par value of US$0.00001 each.
“Class B Shares”
means class B ordinary shares in the capital of the Listco which has a par value of US$0.00001 each.
“Deeds of Release (Existing
Security Documents)” means collectively the deed(s) of release or release agreement to be executed by the Existing Facility
Lender in favour of the respective Obligors under which the Existing Facility Lender absolutely discharges and releases all Security
created in favour of it under the Existing Security Documents pursuant to the terms thereof.
“Depositary” means Citibank, N.A. or
its successor. “DTC” means The Depository Trust Company.
“Excess Amount”
means the Existing Facility Lender’s good faith estimate of the amount by which the Outstanding Amount as at the proposed Closing
Date exceeds US$24,000,000.
“Existing Security Documents” means the
following documents executed in connection with the Existing Facility:
| (a) | the equitable share mortgage dated 19
August 2021 executed by the Guarantor in favour of the Existing Facility Lender in respect
of shares in the Issuer held by the Guarantor; |
| (b) | the equitable share mortgage dated 19
August 2021 executed by BVI-1 in favour of the Existing Facility Lender in respect of
Class A Shares held by BVI-1; |
| (c) | the equitable share mortgage dated 19
August 2021 executed by BVI-2 in favour of the Existing Facility Lender in respect of
Class A Shares and Class B Shares held by BVI-2; |
| (d) | the equitable share mortgage dated 19
August 2021 executed by BVI-3 in favour of the Existing Facility Lender in respect of
Class A Shares and Class B Shares held by BVI-3; |
| (e) | the equitable share mortgage dated 19
August 2021 executed by the Issuer in favour of the Existing Facility Lender in respect
of Class A Shares held by the Issuer; |
| (f) | the pledge agreement dated 6 April 2022
executed by the Issuer in favour of the Existing Facility Lender in respect of ADSs held
by the Issuer; and |
| (g) | any other documents executed by any Obligor for providing security
in favour of the Existing Facility Lender from time to time. |
“Guarantor” means
CHEN Sheng ( 陈 升 ), a citizen of the PRC with passport
number [*****] and PRC Identity Card number [*****] and domiciled in the PRC.
“Listco” means VNET
Group, Inc. (世纪互联集团),
an exempted company incorporated in the Cayman Islands with limited liability whose class A ordinary shares (in the form of ADSs) are
traded under the ticker symbol “VNET” on NASDAQ Global Select Market.
“Listco Registrar” means Maples Fund
Services (Asia) Limited and any successor share registrar for Listco acceptable to the Investor.
“Notice of Issuance” means the notice
of issuance to be delivered by the Issuer to the Investor in relation to the issuance of the Note.
“Obligors” means the Issuer, the Guarantor,
BVI-1, BVI-2 and BVI-3 collectively, and “Obligor” means any one of them.
“Party” means a party to this Deed.
“Securities Account” means an account
held in the name of the Issuer with the Broker with account number [*****].
“Security” means
a mortgage, charge, pledge, lien, assignment or other security interest securing any obligation of any person or any other agreement
or arrangement having a similar effect.
“Subject ADSs (Issuer –
Listco)” means 5,604,821 ADSs to be cancelled as ADSs and re-registered as 33,628,926 Class A Shares (representing approximately
2.13% of all issued shares in Listco) in the name of the Issuer pursuant to Clause 2.11(a).
| (a) | Unless a contrary indication appears, any reference in this Deed to: |
| (i) | the “Principal”, the “Trustee”,
any “Party” or any other person shall be construed so as to include its
successors in title, permitted assigns and permitted transferees; |
| (ii) | “assets” or “property” includes
present and future properties, revenues and rights of every description; |
| (iii) | one person being “controlled”
by another means that that other person (whether directly or indirectly and whether by the
ownership of share capital, the possession of voting power, contract or otherwise) has the
power to appoint and/or remove the majority of the members of the governing body of that
person or otherwise controls or has the power to control the affairs and policies of that
person, and “control” shall be construed accordingly; |
| (iv) | “including” shall be construed as “including
without limitation” (and cognate expressions shall be construed similarly); |
| (v) | a “person” includes any individual, firm, company,
corporation, government, state or agency of a state or any association, trust, joint venture,
consortium, partnership or other entity (whether or not having separate legal personality); |
| (vi) | a provision of Law is a reference to that provision as amended or re-
enacted; |
| (vii) | the words “including”,
“for example” or “such as” when introducing an example
do not limit the meaning of the words to which the example relates to that example or examples
of a similar kind; and |
| (viii) | any thing (including an amount) is a reference to the whole and each
part of it. |
| (b) | Unless a contrary indication appears,
references to Recitals, Clauses and Schedules are to be construed as references to recitals
and clauses of, and schedules to, this Deed. |
| (c) | Clause and Schedule headings are for ease of reference only. |
| (d) | References in this Deed to the singular includes the plural and vice
versa, and references to the muscular gender includes the feminine gender and the neuter
gender, and vice versa. |
| (a) | Unless expressly provided to the contrary
in this Deed, a person who is not a Party has no right under the Contracts (Rights of Third
Parties) Ordinance (Chapter 623 of the laws of Hong Kong) to enforce or to enjoy the benefit
of any term of this Deed. |
| (b) | Notwithstanding any term of this Deed,
the consent of any third person who is not a Party is not required to rescind or vary this
Deed at any time. |
| 2. | UNDERTAKINGS OF THE ISSUER, BVI-1 AND THE EXISTING FACILITY LENDER |
| 2.1 | The Issuer shall, forthwith upon delivering
to the Investor a Notice of Issuance, deliver to the Existing Facility Lender a copy of the
Notice of Issuance. The Existing Facility Lender shall, by 6:00 p.m. (Hong Kong time)
on the Business Day immediately following the date that it receives the copy of the Notice
of Issuance, deliver a notice in writing to the Investor (which may be by way of email) stating
the aggregate amount of all sums (including without limitation the Outstanding Principal,
all outstanding interest accrued thereon, all outstanding fees, costs and expenses in connection
with the Existing Facility, and all bank charges, costs and expenses that may be incurred
by BVI-1 in connection with the transfer of the proceeds from the issue of the Note to the
Designated Account (as defined below)) (the “Outstanding Amount”) required
for all Obligors to discharge all their respective obligations owed to the Existing Facility
Lender (whether under the Existing Facility or otherwise) as at the Closing Date specified
in the copy of the Notice of Issuance. |
| (a) | procure that as at the Closing Date, the Outstanding Amount shall
not exceed US$24,000,000; |
| (b) | on or prior to the date of the Notice
of Issuance, deliver to the Existing Facility Lender all original Obligors’ signature
pages to the Deeds of Release (Existing Security Documents) to a location specified
by the Existing Facility Lender, together with an irrevocable authorisation to the Existing
Facility Lender to release such signature pages to the Investor on the Discharge Date
(as defined below); |
| (c) | procure the Existing Facility Lender deliver to the Investor the confirmation
as set out under Clause 2.3(b) on or prior to the date of the Notice of Issuance; |
| (d) | notify the Existing Facility Lender of
the proposed Closing Date for the purpose of calculating the Excess Amount and ensure that
such proposed Closing Date is specified as the Closing Date in the Notice of Issuance; and |
| (e) | prior to the proposed Closing Date, procure
that BVI-1 will, and BVI-1 agrees that it shall, pay an amount not less than the Excess Amount
to the Existing Facility Lender by transfer to the Designated Account (as defined below)
for partial repayment of the Outstanding Amount (and, for the avoidance of doubt, such amount
shall be transferred to the Designated Account from an account of BVI-1 directly by wire
transfer, and the Existing Facility Lender shall be entitled to apply any amount received
towards the discharge of any amounts then due and payable by the Obligors in connection with
the Existing Facility upon receipt). |
| 2.3 | The Existing Facility Lender shall deliver to the Investor: |
| (a) | by 6:00 p.m. (Hong Kong time) on
the Business Day immediately following the date that the Existing Facility Lender receives
the copy of the Notice of Issuance, a confirmation with detailed basis for calculating the
Outstanding Amount for a future period (the “Future Period”) covering
the period from five (5) Business Days prior to the Closing Date till the five (5) Business
Days after the Closing Date; |
| (b) | a confirmation (which may be in the form
of email) that the Issuer has complied with its obligations under Clause 2.2(b) promptly
upon being satisfied that the Issuer has complied with such obligations. |
| 2.4 | The Existing Facility Lender hereby designates
the following bank account (or such other bank account as may be notified by the Existing
Facility Lender to the other Parties with five (5) Business Day’s prior notice,
the “Designated Account”) for the purpose of receiving the Outstanding Amount: |
Beneficiary Bank Name: |
[*****] |
Beneficiary
Bank Address: |
[*****] |
Beneficiary
bank SWIFT: |
[*****] |
Beneficiary
Name: |
[*****] |
Beneficiary
Account: |
[*****] |
Correspondent Bank
Name: |
[*****] |
Correspondent
SWIFT: |
[*****] |
Reference: |
[*****] |
| 2.5 | The Existing Facility Lender hereby agrees
and undertakes to the Issuer and the Investor that it shall, and each of the Issuer and the
Investor acknowledges and agrees that the Existing Facility Lender will, (i) if the
Existing Facility Lender has received immediately available funds in the Designated Account
in an aggregate amount equal to all sums then due, owing or incurred by the Obligors to the
Existing Facility Lender under the Existing Facility by 6:00 p.m. (Hong Kong time) on
a Business Day, promptly on the same Business Day and (ii) if the Existing Facility
Lender has received immediately available funds in the Designated Account in an aggregate
amount equal to all sums then due, owing or incurred by the Obligors to the Existing Facility
Lender under the Existing Facility after 6:00 p.m. (Hong Kong time) on a Business Day
or on a day that is not a Business Day, promptly on the immediately following Business Day
(such date as determined under paragraph (i) or (ii), the “Discharge Date”): |
| (a) | provided that the Issuer has complied
with its obligations under Clause 2.2(b), (i) deliver, or procure the delivery of, all
original Deeds of Release (Existing Security Documents), each duly executed by the Obligor
which is a party thereto and the Existing Facility Lender, to the Investor; and (ii) deliver
copies of such fully executed Deeds of Release (Existing Security Documents) to the Issuer
(which may be by email); |
| (b) | give instructions to Citigroup Global
Markets Inc. (the “Existing Custodian”) in its capacity as custodian for
the Existing Facility Lender to transfer and deposit the Subject ADSs (Issuer – Listco)
into the DTC participant account of BNP Paribas SA, New York Branch (for further credit to
the account of the Broker at BNP Paribas SA, New York Branch) in the form set out in Schedule
1 (Form of Letter of Instruction), and provide documentary evidence (which may
be in the form of email) to the Investor and the Issuer that such instructions have been
given, and deliver such other documents and evidence as may be reasonably requested by the
Depository from the Existing Facility Lender in order to complete such transfer and deposit;
and |
| (c) | deliver to the Investor the documentary evidence of title listed in
Schedule 2 (List of Documentary Evidence of Title). |
| 2.6 | The Existing Facility Lender shall: |
| (a) | within two (2) Business Days after
the Discharge Date, file a notice of satisfaction or release of charge in respect of the
Existing Security Documents to which a BVI Co is a party with the BVI Registrar pursuant
to the BVI Act and deliver to the Investor documentary evidence (which may be in the form
of email) that such filing has been submitted to the BVI Registrar; and |
| (b) | promptly
upon its receipt, deliver to the Investor all copies and originals of the certificates of
release issued by the BVI Registrar in respect of release of such Existing Security Documents. |
| 2.7 | Subject
to its receipt of a copy of the fully executed Deeds of Release (Existing Security Documents)
under Clause 2.5(a) from the Existing Facility Lender, the Issuer shall procure that
each of the Obligors shall on the Discharge Date, instruct their respective British Virgin
Islands registered agents to update the register of charges of the Obligors to reflect the
release of the Existing Security Documents. The Issuer shall deliver a certified copy of
such updated register of charges of the Obligors within four (4) Business Days after
the Discharge Date. |
| 2.8 | The
Existing Facility Lender shall give instructions to the Existing Custodian (which may be
contained in the instructions given by the Existing Facility Lender pursuant to Clause 2.5(b))
to, as soon as commercially practicable (and in any event, within twelve (12) days of such
instructions), complete the transfer of the Subject ADSs (Issuer – Listco) into the
DTC participant account of BNP Paribas SA, New York Branch (for further credit to the account
of the Broker at BNP Paribas SA, New York Branch), in the form set out in Schedule 1 (Form of
Letter of Instruction), and until the Existing Custodian completes the aforementioned
transfer, the Existing Facility Lender shall continuously give further instruction(s) substantially
in the form set out in Schedule 1 (Form of Letter of Instruction) to the Existing
Custodian at the Investor’s reasonable request from time to time. |
| 2.9 | The Issuer shall procure the Broker to complete
the transfer of the Subject ADSs (Issuer – Listco) into the Securities Account no later
than fifteen (15) Business Days following the giving of the instructions pursuant to Clause
2.5(b). |
| 2.10 | The
Issuer hereby irrevocably requests and authorises the Investor to credit the proceeds from
the issue of the Note to the BVI-1 Account (as defined below). BVI- 1 hereby agrees and undertakes
to apply the proceeds from the issue of the Note towards the repayment of any sums due, owing
or incurred by the Obligors to the Existing Facility Lender under the Existing Facility by
way of a direct transfer from the BVI-1 Account (as defined below) of such proceeds to the
Designated Account. BVI-1 hereby designates the following bank account for the purpose of
receiving the proceeds from the issue of the Note (the “BVI-1 Account”): |
Beneficiary Bank Name: |
[*****] |
Beneficiary
Bank Address: |
[*****] |
Beneficiary
bank SWIFT: |
[*****] |
Beneficiary
Name: |
[*****] |
Beneficiary
Account: |
[*****] |
Clearing
No. for local remittance: |
[*****] |
Correspondent
Bank Name: |
[*****] |
Correspondent
SWIFT: |
[*****] |
Correspondent
Bank Account: |
[*****] |
Correspondent
Bank Name (if by remittance CHATS): |
[*****] |
Correspondent
SWIFT (if by remittance CHATS): |
[*****] |
Correspondent
Bank Account (if by remittance CHATS): |
[*****] |
Reference: |
[*****] |
| 2.11 | The Issuer hereby undertakes to the Existing Facility Lender and the
Investor that, upon receipt of the Subject ADSs (Issuer – Listco) in the Securities
Account: |
| (a) | the Issuer shall, at its own cost, promptly
instruct the Depositary and the Listco Registrar to cancel the Subject ADSs (Issuer –
Listco) as ADSs and re-register as Class A Shares on the books of the Listco Registrar
in the name of the Issuer (the “Cancellation and Re-registration”); |
| (b) | the
Issuer shall not allow the Subject ADSs (Issuer – Listco) to be transferred other than
any transfer necessary to effectuate the Cancellation and Re-registration; and |
| (c) | the
Issuer shall not offer for sale or otherwise transfer, or pledge, mortgage or otherwise encumber
(collectively, “Dealing”) all or part of the Subject ADSs (Issuer –
Listco) (and any Class A Shares represented by those ADSs) unless such Dealing is (i) in
compliance with all applicable laws (including but not limited to the United States Securities
Act of 1933, as amended); and (ii) made with the prior written consent of the Investor
or is otherwise permitted under the Transaction Documents (as defined under the Subscription
Agreement). |
| 2.12 | The Issuer shall procure the Cancellation
and Re-registration to be completed no later than five (5) Business Days following the
giving of the instructions pursuant to Clause 2.11(a). |
| 3. | REPRESENTATIONS AND WARRANTIES |
| 3.1 | Each Party represents and warrants to each other Party that: |
| (a) | it is duly incorporated under the laws
of its jurisdiction of incorporation and has and shall at all times have the necessary power
to enter into and perform its obligations under this Deed and has duly authorised the execution
of this Deed; |
| (b) | this Deed constitutes its legal, binding and enforceable obligations; |
| (c) | the execution, delivery, observance and performance by it of this
Deed shall not result in any violation of any laws applicable to it; |
| (d) | it has obtained all the necessary authorisations
and consents to enable it to enter into this Deed and the necessary authorisation and consents
shall remain in full force and effect at all times during the term of this Deed; |
| 4.1 | Each
Party (the “Receiving Party”) shall, at all times, treat as confidential
and not disclose to any other person all information disclosed (whether in written or other
form) in confidence by or on behalf of a party (the “Disclosing Party”)
to the Receiving Party) pursuant to this Deed (such information being “Confidential
Information”), save where it is or was: |
| (a) | already
known to the Receiving Party; |
| (b) | in
the public domain or becomes public knowledge otherwise than as a result of the unauthorised
or improper conduct of the Receiving Party; |
| (c) | disclosed
as required by any law or regulation or the rules of any relevant stock exchange, an
order of any court, tribunal or judicial equivalent, pursuant to any direction, request or
requirement (whether or not having the force of law) of any central bank, governmental, supervisory
or other regulatory agency or taxation authority, or in connection with any legal, arbitration,
administrative or other investigations, proceedings or disputes; |
| (d) | disclosed
for business purposes to affiliates or professional advisers, service providers or agents
engaged by Receiving Party, who receive the same under a duty of confidentiality; |
| (e) | made
available by a third party who is/was entitled to divulge such information and who is not
under any obligation of confidentiality in respect of such information; or |
| (f) | disclosed with the consent of the Disclosing Party. |
| 5.1 | Any notice or other communication given under
this Deed shall be in writing and signed by or on behalf of the party giving it and shall
be served by sending it by pre-paid recorded delivery or registered post (where applicable)
or email to the address and for the attention of the relevant party set out below (or as
otherwise notified by that party from time to time). Any such notice shall be deemed to have
been received: |
| (a) | in the case of pre-paid recorded delivery or registered post, 48 hours
from the date of posting; and |
| (b) | in the case of email, at the time of receipt
which means at the time the email enters the receiving party's information processing system. |
| 5.2 | Notices to the Issuer shall be sent to the following: |
GenTao Capital Limited
Address: 10 Jiuxianqiao East Road, Chaoyang District, Beijing
100016
For the attention of: Chen Sheng
Email address: [*****]
| 5.3 | Notices to the Existing Facility Lender shall be sent to the following: |
Bold Ally (Cayman) Limited
Address: Walkers Corporate Limited, 190 Elgin Avenue, George
Town, Grand
Cayman KY 1-9008, Cayman Islands
With a copy to: 40F Gloucester Tower, The Landmark, 15 Queens
Road Central,
Central, Hong Kong
For the attention of: Board of Directors
Email address: [*****]
| 5.4 | Notices to the Investor shall be sent to the following: |
Shining Rich Holdings Limited 耀富控股有限公司
For the attention of: Fang Li / Tong Lin
Email address: [*****]
| 6.1 | This Deed may not be assigned or novated by any Party without the written
consent of the other Parties. |
| 6.2 | This Deed may be executed in any number of
counterparts each of which when executed and delivered shall constitute an original and all
such counterparts together constituting one and the same deed. |
| 6.3 | If
any provision herein shall be determined to be void or unenforceable in whole or in part
for any reason whatsoever such invalidity or unenforceability shall not affect the remaining
provisions or any part thereof contained within this Deed and such void or unenforceable
provisions shall be deemed to be severable from any other provision or part thereof herein
contained. |
| 6.4 | This Deed supersedes all previous agreements
between the Parties, and sets out the entire agreement and understanding between the Parties,
with respect to its subject matter. |
| 6.5 | No
amendment or variation of this Deed shall be valid unless it is in writing and signed by
or on behalf of each Party. |
| 7. | GOVERNING
LAW AND JURISDICTION |
| 7.1 | This
Deed is governed by, and shall be construed in accordance with, the laws of the Hong Kong.
Each Party irrevocably agrees to submit to the exclusive jurisdiction of the courts of Hong
Kong over any claim or matter arising under or in connection with this Deed. |
| 8.1 | Without
prejudice to any other mode of service allowed under any relevant law: |
| (a) | each
of the Issuer and BVI-1 irrevocably appoints VNET Group Limited of 37/F., Tower 1 Metroplaza,
Hing Fong Road, Kwai Fong, Hong Kong as its agent under this Deed for service of process
in any proceedings before the Hong Kong courts in connection with this Deed; |
| (b) | the Existing Facility Lender irrevocably
appoints Ares Management Asia (Hong Kong) Limited of 40F, Gloucester Tower, The Landmark,
15 Queen’s Road Central, Central, Hong Kong as its agent under this Deed for service
of process in any proceedings before the Hong Kong courts in connection with this Deed; and |
| (c) | the
Investor irrevocably appoints Li & Partners of 22/F, World Wide House, Central,
Hong Kong as its agent under this Deed for service of process in any proceedings before the
Hong Kong courts in connection with this Deed. |
| 8.2 | If
any person appointed as process agent under this Clause 8 is unable for any reason to so
act, that Party must immediately (and in any event within five (5) Business Days of
the event taking place) appoint another agent on terms acceptable to the Investor. Failing
this, the Investor may appoint another process agent for this purpose. |
| 8.3 | Each Party agrees that failure by a process agent to notify it of any
process will not invalidate the relevant proceedings. |
| 8.4 | This Clause 8 does not affect any other method of service allowed by law. |
IN WITNESS WHEREOF the Parties have executed and delivered
this Deed as a deed on the day and year first above written.
SCHEDULE 1
Form of Letter of Instruction
Letter of Instruction
Special Equity Transactions Group, Citigroup Global Markets Inc. (“CGMI”)
388 Greenwich St
New York NY 10013
Date:
2024
Dear Sir/Madam
I am authorized to give instruction on behalf
of Bold Ally (Cayman) Limited in all matters related to account [*****] at CGMI (the “Bold Ally Account”).
I hereby instruct CGMI to make, on the date of
this letter, a one-time transfer of 5,604,821 American depositary shares of VNET Group, Inc. (Cusip 90138A103) from the Bold
Ally Account into the following account through the facilities of DTC on a free-of-payment basis:
Broker Name: Huatai Financial Holdings (Hong
Kong) Limited
DTC Participant Name: BNP Paribas SA, New York
Branch
DTC Participant Number: 2787
Internal Account Name: Huatai Financial Holdings
(Hong Kong) Limited
Internal Account Number: [*****]
Contact Name/Group/E-Mail at DTC Participant: Evan Zhang (Tel: +852
3465 3897; Email: settlement@htsc.com; pwm_ops@htsc.com)
[Signature page follows]
Sincerely yours,
BOLD ALLY (CAYMAN) LIMITED
SCHEDULE 2
List of Documentary Evidence of Title
| 1. | One original share certificate no. OB-033
in respect of 545,117 Class B ordinary shares of 21Vianet Group, Inc. in the name
of Fast Horse Technology Limited |
| 2. | One
original share certificate no. OB-037 in respect of 19,125,000 Class B ordinary shares
of 21Vianet Group, Inc. in the name of Fast Horse Technology Limited |
| 3. | One
original share certificate no. OB-063 in respect of 8,087,875 Class B ordinary shares
of 21Vianet Group, Inc. in the name of Sunrise Corporate Holding Ltd. |
| 4. | One original share certificate no. 3 in respect of 1 ordinary share of
GenTao Capital Limited in the name of CHEN Sheng |
EXECUTION PAGE
The Issuer |
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EXECUTED AND DELIVERED |
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AS A DEED by |
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, its authorised director for and on behalf of |
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GENTAO CAPITAL LIMITED |
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/s/ Chen Sheng |
in the presence of: |
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Name: |
Chen Sheng |
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Title: |
Director |
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/s/ Sun Yaxuan |
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Signature of witness |
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Name of witness: Sun Yaxuan |
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Address of witness: 10 Jiuxianqiao East |
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Road, Chaoyang District, Beijing 100016 |
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[Execution page –
Existing Facility Lender Deed of Undertaking – Issuer]
BVI-1 |
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EXECUTED AND DELIVERED |
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AS A DEED by |
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, its authorised director for and on behalf of |
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GENTAO CAPITAL GROUP INC. |
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/s/ Chen Sheng |
in the presence of: |
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Name: |
Chen Sheng |
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Title: |
Director |
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/s/ Sun Yaxuan |
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Signature of witness |
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Name of witness: Sun Yaxuan |
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Address of witness: 10 Jiuxianqiao East |
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Road, Chaoyang District, Beijing 100016 |
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[Execution page –
Existing Facility Lender Deed of Undertaking – BVI-1]
The
Existing Facility Lender |
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EXECUTED AND DELIVERED |
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AS A DEED by Isatou Smith |
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, its authorised director for and on behalf of |
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BOLD ALLY (CAYMAN) LIMITED |
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/s/ Isatou Smith |
in the presence of: |
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Name: |
Isatou Smith |
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Title: |
AUTHORISED SIGNATORY |
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/s/ James Lewis |
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Signature of witness |
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Name of witness: James Lewis |
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Address of witness: |
12 - 59 Las Brisas Drive |
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West
Bay Beach North |
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Grand Cayman, |
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Cayman Islands |
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[Execution page – Existing Facility Lender Deed of
Undertaking – Existing Facility Lender]
The
Investor |
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EXECUTED AND DELIVERED |
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AS A DEED by |
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, its authorised director for and on behalf of |
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SHINING RICH HOLDINGS LIMITED |
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![](https://www.sec.gov/Archives/edgar/data/1541680/000110465924078193/tm2418852d1_ex99-23img001.jpg) |
) |
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/s/ Wang Peng |
in the presence of: |
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Name: |
Wang Peng |
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Title: |
Authorised Signatory |
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/s/ Meng Ling Wei |
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Signature of witness |
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Name of witness: Meng Ling Wei |
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Address of witness: |
Beijing, Xicheng District |
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[Execution page
– Existing Facility Lender Deed of Undertaking – Investor]
Exhibit 99.24
EXECUTION VERSION
Dated
5th day of July 2024 |
GENTAO CAPITAL LIMITED
as Chargor
IN FAVOUR OF
SHINING RICH HOLDINGS LIMITED
耀富控股有限公司
as Investor |
CHARGE OVER SHARES |
THIS
DEED is made on the 5th day of July 2024
BY:
GENTAO
CAPITAL LIMITED, a BVI business company incorporated under the laws of the British Virgin Islands with limited liability with
company number 1759132 and with its registered office at Vistra Corporate Services Centre, Wickhams Cay II, Road Town, Tortola, VG1110,
British Virgin Islands (the “Chargor” or the “Issuer”)
IN FAVOUR OF:
SHINING
RICH HOLDINGS LIMITED 耀富控股有限公司, a BVI business company incorporated
under the laws of the British Virgin Islands with limited liability with company number 1972405 and with its registered office at Portcullis
Chambers, 4th Floor Ellen Skelton Building, 3076 Sir Francis Drake Highway, Road Town, Tortola, British Virgin Islands VG1110 (the “Investor”).
(The parties referred above shall collectively
be referred to as the “Parties” and each a “Party”.)
NOW
THIS DEED WITNESSES as follows:
1. | DEFINITIONS AND INTERPRETATION |
Unless otherwise defined in this Deed
or unless the context otherwise requires, terms and expressions defined in or construed for the purposes of the Subscription Agreement
as amended from time to time shall bear the same meanings when used herein. In addition:
“Additional Ordinary Shares”
means:
| (a) | 33,628,926 Class A Shares represented by 5,604,821 ADS to be re-registered in the name of the Chargor pursuant to paragraph (a)(iii) of
clause 15.21 (Conditions Subsequent) of the Subscription Agreement; |
| (c) | any Class A Shares and/or Class B Shares acquired by the Chargor in respect of Shares by reason of a stock split, stock
dividends, stock dividend paid or made in respect of Shares in the form of Class A Shares or Class B Shares (as the case may
be), reclassification, conversion or otherwise, including any Class A Shares converted from Shares in the form of Class B Shares
in accordance with the memorandum and articles of association of Listco and in accordance with the ADS Conversion Process (or otherwise);
and |
| (d) | any Class A Shares released or returned by the Depositary (or its nominee) to the Chargor as a result of: |
| (i) | any Shares being unable to be deposited with the Depositary in accordance with the ADS Conversion Process for any reason; |
| (ii) | any ADSs previously issued in exchange for the deposit of such Shares being surrendered for the purpose of withdrawal of the Class A
Shares represented thereby (whether or not at the direction of the Investor). |
“ADS Conversion Process”
means the process comprising of the deposit of all or any part of the Class A Shares with the Depositary (or its nominee) in exchange
for the issuance by the Depositary of a corresponding number of ADSs representing the Class A Shares being exchanged.
“BVI Act” means
the British Virgin Islands Business Companies Act 2004, as amended and/or supplemented from time to time.
“Certificated Shares”
means any and all of the Shares which are represented by a share certificate from time to time.
“Charged Property”
means: (a) the Share Collateral (and any part of them); (b) the Related Rights in relation to the Share Collateral; and (c) all
the assets and/or undertaking (including but not limited to the Share Collateral and all Related Rights in relation thereto) of the Chargor
which from time to time are the subject of the security created or expressed to be created in favour of the Investor by or pursuant to
this Deed.
“Collateral Rights”
means all rights, powers and remedies of the Investor provided by or pursuant to this Deed or by law.
“Companies Act”
means the Companies Act (As Revised) of the Cayman Islands.
“Companies Ordinance”
means the Companies Ordinance (Cap. 622 of the laws of Hong Kong).
“Event of Default”
has the meaning given to the term “Event of Default” under the Note Instrument.
“Further Shares”
means all Class A Shares and Class B Shares held by the Chargor which are required under paragraph (b) of clause 15.21
(Conditions Subsequent) or any other provisions of the Subscription Agreement to become subject to the Security conferred or intended
to be conferred on the Investor by or pursuant to this Deed in form and substance satisfactory to the Investor.
“Initial Class A Share”
means the one (1) Class A Share owned by the Chargor, represented by share certificate number OA-284).
“Listco”
means VNET Group, Inc. ( 世纪互联集团), an exempted company incorporated in the
Cayman Islands with limited liability whose class A ordinary shares (in the form of ADSs) are traded under the ticker symbol
“VNET” on NASDAQ Global Select Market.
“Receiver” means
a receiver or receiver and manager or an administrative receiver of the whole or any part of the Charged Property and that term will include
any appointee under a joint and/or several appointment.
“Register of Members”
means the Register of Members of the Listco (including any applicable branch register and non-listed shares register) maintained by the
Listco in accordance with the Companies Act.
“Related Rights”
means, in relation to any Charged Property:
| (a) | any proceeds of sale, transfer, redemption, substitution, exchange, conversion or other disposal, or agreement for sale, transfer,
redemption, substitution, exchange, conversion or other disposal, of; |
| (b) | any moneys or proceeds paid or payable (including interest and dividends) deriving from; |
| (c) | any rights (including to securities), claims, guarantees, indemnities, security or covenants for title in relation to; |
| (d) | any certificate or other evidence of title to; |
| (e) | all other rights, powers, benefits and privileges, present and future, which the Chargor may have in respect of; and/or |
| (f) | any other assets or property deriving from, |
the Shares from time to time, including
(A) any ADSs issued in exchange for the deposit of Shares with the Depositary (or its nominee) in accordance with clause 15.21 (Conditions
Subsequent) of the Subscription Agreement and the ADS Conversion Process and (B) all other securities, assets or rights which
the Chargor may have to any or all of the Shares which are deposited with or registered in the name of the Depositary or any other depositary,
custodian, nominee, clearing house or system, investment manager, chargee or other similar person or their nominee, in each case whether
or not on a fungible basis (including any rights against any such person).
“Secured Obligations”
means all obligations at any time due, owing or incurred by the Obligors, to the Investor under the Transaction Documents (or any of them)
(as amended, restated, supplemented and/or novated from time to time), whether present or future, actual or contingent (and whether incurred
solely or jointly and whether as principal or surety or in some other capacity).
“Security
Period” means the period from and including the date of execution of this Deed to and including the date of discharge of the
security created by this Deed in accordance with Clause 19 (Release of Security).
“Share Registrar”
means Maples Fund Services (Asia) Limited and any successor share registrar for Listco acceptable to the Investor.
“Shares” means:
| (a) | the Initial Class A Share; and |
| (b) | the Additional Ordinary Shares. |
“Share Collateral”
means all present and future Shares beneficially owned by the Chargor, and/or any substitute or additional Shares thereof from time to
time, while any Secured Obligations are outstanding.
“Subscription
Agreement” means the subscription agreement dated_______________2024 entered into between (among others) the Issuer as issuer and the
Investor as investor, pursuant to which, the Issuer agrees to issue to the Investor, and the Investor agrees to subscribe from the
Issuer, the Note (as supplemented, modified or amended from time to time).
“Triggering
Event” has the meaning given to it in Clause 7.1.1.
In this Deed:
| 1.2.1 | the rules of construction set out in clause 1.2 of the Subscription Agreement shall apply to this Deed mutatis mutandis; |
| 1.2.2 | references in this Deed to any Clause or Schedule shall be to a clause or schedule contained in this Deed; and |
| 1.2.3 | any reference to the Chargor and the Investor shall be construed so as to include its or their (and any subsequent) successors and
any permitted assigns and transferees in accordance with their respective interests. |
The Chargor hereby covenants with the
Investor that it shall on demand pay and discharge each of the Secured Obligations on their due date as provided for in the Transaction
Documents.
| (a) | All the security created under this Deed: |
| (i) | is created in favour of the Investor; |
| (ii) | is created over present and future assets of the Chargor; |
| (iii) | is created by the Chargor as the beneficial owner of the Charged Property; and |
| (iv) | is continuing security for the payment, discharge and performance of all the Secured Obligations. |
| (b) | If the rights of the Chargor under a document cannot be the subject of this Security without the consent of a party to that document: |
| (i) | the Chargor must notify the Investor promptly; |
| (ii) | this Security will secure all amounts which the Chargor may receive, or has received, under that document or in respect of that other
asset, but exclude the document or that other asset itself; and |
| (iii) | unless the Investor otherwise requires, the Chargor must use reasonable endeavours to obtain the consent of the relevant party to
that document being the subject of this Security. |
| (a) | The Chargor hereby charges as beneficial owner in favour of the Investor, as security for the payment and discharge of the Secured
Obligations, by way of first fixed charge, all the Chargor’s right, title and interest from time to time in and to the Share Collateral
and all its other present and future Related Rights in relation thereto. |
| (b) | The Chargor hereby authorises the Investor to arrange at any time following the occurrence of an Event of Default which is continuing
for the Charged Property or any part thereof to be registered in the name of the Investor (or its nominee) thereupon to be held, as so
registered, subject to the terms of this Deed and at the request of the Investor, the Chargor shall without delay procure that the foregoing
shall be done. |
3.3 | Creation of floating charge |
The
Chargor charges as beneficial owner to the Investor by way of first floating charge and as a continuing security for the payment and discharge
of the Secured Obligations all of the Charged Property, other than any Charged Property validly and effectively charged or assigned (whether
at law or in equity) pursuant to Clause 3.2 (Fixed Charge).
3.4 | Conversion of floating charge |
Notwithstanding
anything express or implied in this Deed, the Investor may at any time after the occurrence of an Event of Default, by giving notice
in writing to that effect to the Chargor convert the floating charge created by Clause 3.3 (Creation of floating
charge) into a fixed charge as regards any assets specified in such notice. The conversion shall take effect immediately upon
the giving of the notice.
Notwithstanding anything express or
implied in this Deed, and without prejudice to any law which may have similar effect, if:
| (i) | the Chargor creates or attempts to create any security over all or any of the Charged Property without the prior consent of the Investor
or save as expressly permitted under any Transaction Document; or |
| (ii) | any person levies or attempts to levy any distress, sequestration, execution or other process against, or appoints a receiver over,
any of the Charged Property; or |
| (iii) | if any steps are taken, including the presentation of a petition and the making of an application for the liquidation, insolvency
or administration of the Chargor or if a provisional liquidator or liquidator is appointed; or |
| (iv) | in any other circumstances prescribed by law, |
then
the floating charge created by Clause 3.3 (Creation of floating charge) will automatically (without notice) be converted
into a fixed charge as regards all of the assets subject to the floating charge.
The
giving of a notice by the Investor pursuant to Clause 3.4(a) (Conversion by notice) in relation to any Charged Property
shall not be construed as a waiver or abandonment of the rights of the Investor to serve similar notices in respect of any other class
of assets or any other right of the Investor.
| 4.1.1 | The Chargor shall promptly after execution of this Deed (or, in respect of any Additional Ordinary Shares acquired after the date
of this Deed, promptly after such Additional Ordinary Shares become subject to the Security conferred or intended to be conferred on the
Investor by or pursuant to this Deed) procure that the following notation to be entered on the Register of Members provided that such
notation shall be completed to reflect the details of the relevant Shares: |
“The
[¨] class [¨] ordinary
shares issued and registered in the name of GenTao Capital Limited represented by share certificate[s] number [¨]
[and [¨]] are charged in favour of Shining Rich Holdings Limited 耀富控股有限公司 pursuant
to a charge over shares dated [Date] 2024, as amended from time to time. The date that this annotation is made is
[Date].”
| 4.1.2 | The Chargor shall provide the Investor with a certified true copy of an extract of the Register of Members with the annotation referred
to in Clause 4.1.1 within five (5) Business Days of the date of this Deed (or, in respect of any Additional Ordinary Shares acquired
after the date of this Deed, within five (5) Business Days of the date on which such Additional Ordinary Shares become subject to
the Security conferred or intended to be conferred on the Investor by or pursuant to this Deed). |
| 4.1.3 | The Chargor represents and warrants that, on the date of this Deed, it is not registered as a non-Hong Kong company under Part 16
of the Companies Ordinance nor has it made any application to be so registered. |
| 4.1.4 | If at any time after the date of this Deed, the Chargor applies to have itself registered as a non-Hong Kong company under Part 16
of the Companies Ordinance, it shall promptly notify the Investor in writing. Without prejudice to the foregoing, upon its being registered
as a non-Hong Kong company under Part 16 of the Companies Ordinance, the Chargor shall promptly: |
| (a) | notify the Investor and provide it with the details of such registration; and |
| (b) | (and in any case within one month after the date of such registration) take all necessary steps to comply with the requirements under
section 340 of the Companies Ordinance in respect of this Deed and the security created hereby. |
| 4.1.5 | Registration of Security in the BVI |
| (a) | The Chargor is required by section 162 of the BVI Act to establish and maintain a register of charges (“Register of Charges”)
and details of the Security created by this Deed shall be entered in the Register of Charges kept at the Chargor’s registered office
or at the office of the registered agent of the Chargor. The Chargor shall, within five (5) Business Days of the execution of this
Deed and in compliance with the BVI Act, enter the details of the Security created by this Deed in the Register of Charges maintained
at the Chargor’s registered office. The Chargor shall, within five (5) Business Days of the execution of this Deed, deliver
to the Investor a copy of the Register of Charges duly certified by a director of the Chargor. |
| (b) | The Chargor shall, or shall assist the Investor to, contemporaneously with the execution of this Deed, register with the Registrar
of Corporate Affairs in the British Virgin Islands details of the Security created by this Deed in the Register of Registered Charges
maintained at the Registrar pursuant to section 163 of the BVI Act. |
| (c) | If the registration referred to in paragraph (b) of this Clause 4.1.5 is not being effected by or on behalf of the Investor,
the Chargor shall, promptly on receipt, and in any event, within fifteen (15) Business Days from the date of this Deed, deliver to the
Investor a true copy of the Certificate of Registration of Charge in relation to the registration of this Deed duly certified by a director
of the Chargor. |
4.2 | [Intentionally deleted] |
4.3 | Delivery of Documents of Title |
The Chargor shall:
| 4.3.1 | on the date of this Deed, deposit with the Investor (or procure the deposit with the Investor of) an acknowledgment from each person
(if any) holding any Shares existing as at the date of this Deed as its nominee, substantially in the form set out in Schedule 2 (Form of
Acknowledgment from Nominee); |
| 4.3.2 | procure that, where any nominee holding any Shares or Related Rights ceases to be or act as such, the successor nominee (or, if more
than one, each successor nominee)) shall forthwith execute and deliver to the Investor an acknowledgment in respect of such Shares or
Related Rights in substantially the form set out in Schedule 2 (Form of Acknowledgment from Nominee) or in such other form
as the Investor may reasonably request; |
| 4.3.3 | on the date of this Deed, deposit with the Investor (or procure the deposit with the Investor of) the following in respect of the
Initial Class A Share existing as at the date of this Deed: |
| (a) | all share certificates (if any) or other documents of title; |
| (b) | an instrument of transfer in the form set out in Schedule 1 (Form of Instrument of Transfer) which has been duly executed
by the Chargor as transferor in blank (with the date, the name of the transferee and the number of shares left blank); |
| (c) | an irrevocable proxy and irrevocable power of attorney made in respect of the Share Collateral in the form set out in Schedule 3 (Form of
Irrevocable Appointment of Proxy and Power of Attorney) which has been duly executed by the Chargor in blank (with the date and the
number of shares left blank); and |
| (d) | a notice of charge from the Chargor to the Listco in the form set out in Schedule 4 (Form of Notice of Charge) which has
been duly executed by the Chargor, |
the documents set out in paragraphs (a) to (d) above
together, the “Security Deliverables”;
| 4.3.4 | deposit with the Investor (or procure the deposit with the Investor of) such documents as the Investor deems necessary or desirable
for the ADS Conversion Process in form and substance satisfactory to the Investor (collectively, the “ADS Conversion Documents”): |
| (a) | on the date of this Deed, all documents for the ADS Conversion Process in the form set out in Schedule 5 to Schedule 12 which have
been duly executed by the Chargor or the Listco (as the case may be); and |
| (b) | such further ADS Conversion Documents as the Investor deems necessary or desirable in accordance with clause 15.21 (Conditions
Subsequent) of the Subscription Agreement, |
| 4.3.5 | in respect of the Additional Ordinary Shares, the Chargor shall, deliver (or procured there to be delivered) to the Investor the following
documents in form and substance satisfactory to the Investor, (i) in respect of the 33,628,926 Class A Shares represented by
5,604,821 ADS to be re-registered in the name of the Chargor pursuant to paragraphs (a)(iii) and (iv) of clause 15.21 (Conditions
Subsequent) of the Subscription Agreement, on the date such re-registration is completed; (ii) in the case of any Additional
Ordinary Shares that are Further Shares, on or prior to the date on which such Additional Ordinary Shares are required to be furnished
as Security pursuant to paragraph (b) of clause 15.21 (Conditions Subsequent) or any other provisions of the Subscription
Agreement (or, in respect of the ADS Conversion Documents only, if later, the date on which any documents in respect of such Additional
Ordinary Shares are required to be delivered under paragraph (d) of clause 15.21 (Conditions Subsequent) of the Subscription
Agreement); and (iii) in the case of other Additional Ordinary Shares , on the date on which such Additional Ordinary Shares become
so subject to the Security conferred or intended to be conferred on the Investor by or pursuant to this Deed (or, in respect of the ADS
Conversion Documents only, if later, the date on which any documents in respect of such Additional Ordinary Shares are required to be
delivered under paragraph (d) of clause 15.21 (Conditions Subsequent) of the Subscription Agreement): |
| (a) | a certified true copy of an extract of the Register of Members showing the Chargor as the registered owner of the Additional Ordinary
Shares; |
| (b) | original valid and duly issued share certificates or other documents of title representing such Additional Ordinary Shares; and |
| (c) | all Security Deliverables in respect of such Additional Ordinary Shares (each of which has been duly executed by the Chargor in the
manner set out in Clause 4.3.3) in form and substance satisfactory to the Investor; |
| (d) | all ADS Conversion Documents; |
| 4.3.6 | on the date of any removal or resignation of any director of the Chargor who executed any Security Deliverables or any documents deposited
with the Investor pursuant to Clauses 4.3.3, 4.3.4 or 4.3.5 in respect of any Shares during the
Security Period, the Chargor shall promptly deliver or cause to be delivered to the Investor a replacement of all such items (each having
been duly executed by a continuing or replacement director of the Chargor (in the case of any Security Deliverables) in the manner set
out in Clause 4.3.3 and (in other cases) in form and substance satisfactory to the Investor) and a certified copy of the register
of directors of the Chargor maintained by the Chargor in accordance with the BVI Act in form and substance satisfactory to the Investor; |
| 4.3.7 | if at any time during the Security Period, the Investor determines that the form of any Security Deliverable or any documents deposited
with the Investor pursuant to Clause 4.3.4 or 4.3.5(d) has been amended, updated or replaced by Listco, the Depositary, the Share
Registrar and/or the registered office provider of Listco rendering such item or document delivered incapable of being used to effect
the ADS Conversion Process, the Chargor shall promptly on demand by the Investor, deliver to the Investor a copy of the amended, updated
or replaced form of such item or document (each having been duly executed by the Chargor (in the case of any Security Deliverables) in
the manner set out in Clause 4.3.3) in form and substance satisfactory to the Investor; |
| 4.3.8 | the Investor shall be entitled to hold all documents and instruments delivered to it pursuant to this Clause 4.3 until the end of
the Security Period, and the Chargor hereby irrevocably and unconditionally authorises (and, with respect to paragraph 4.3.8 of this Clause
4.3.8, requests and authorises) the Investor to (and the Investor shall be entitled to), at any time after the occurrence of an Event
of Default which is continuing, complete, date and put into effect, under its power of attorney given in this Deed or otherwise, such
documents and instruments to effect a transfer of all or any Shares in favour of itself or such other person as it shall direct; and |
| 4.3.9 | any document or instrument required to be delivered to the Investor pursuant to this Clause 4.3 which is for any reason not so delivered
or which is released by the Investor to the Chargor shall be held on trust by the Chargor for the Investor. |
5.1 | Further Assurance: General |
The Chargor shall promptly at its own
cost do all such acts and/or execute all such documents (including without limitation assignments, transfers, mortgages, charges, notices
and instructions) as the Investor may reasonably specify (and in such form as the Investor may reasonably require in favour of the Investor
or its nominee(s)):
| 5.1.1 | to create, perfect, protect or preserve the security created or intended to be created in respect of the Charged Property (which may
include, without limitation, the re-execution of this Deed, the execution by the Chargor of a mortgage, charge or assignment over all
or any of the assets constituting, or intended to constitute, any part of the Charged Property) or for the exercise of the Collateral
Rights, and the giving of any notice, order or direction and the making of any filing or registration, or for the exercise of the Collateral
Rights; and/or |
| 5.1.2 | after the occurrence of a Triggering Event, to facilitate the realisation and/or enforcement of the assets constituting, or intended
to constitute, the Charged Property (including to execute and complete in favour of the Investor, Listco, the Share Registrar, the registered
office provider of Listco, the Depositary (or the nominee of any of the foregoing) or any purchaser any document and to give any instruction
which the Investor may reasonably require to effect any step of the ADS Conversion Process or otherwise vest any of the Charged Property
in the Investor, any Receiver or any other transferee or purchaser). |
The Chargor shall from time to time
take all such action (whether or not requested to do so by the Investor) as is or shall be reasonably available to it (including without
limitation obtaining and/or effecting all approvals) as may be necessary for the purpose of the creation, perfection, protection or maintenance
of any security conferred or intended to be conferred on the Investor by or pursuant to this Deed.
The Chargor shall promptly deliver
to the Investor all information that is available to it and that is required in order for the Investor to comply with any applicable laws
or regulations in respect of any Charged Property (including without limitation section 329 of the Securities and Futures Ordinance (Cap.
571 of the Laws of Hong Kong), or any similar provision in any articles of association or constitutional documents relating to any Charged
Property.
5.4 | Implied Covenants for Title |
The obligations of the Chargor under
this Deed shall be in addition to any covenants for title deemed to be included in this Deed under applicable law.
6. | RESTRICTIONS ON DEALINGS |
The Chargor undertakes that it shall
not, at any time during the subsistence of this Deed, create or permit to subsist any Security over all or any part of the Charged Property
unless expressly permitted under and in accordance with any of the Transaction Documents.
6.2 | No Disposal of Interests |
The Chargor undertakes that, during
the subsistence of this Deed, it shall not, and shall not agree to:
| (a) | sell, assign, transfer or otherwise dispose of any Charged Property; |
| (b) | procure or permit Listco to issue any new shares; |
| (c) | appoint any new director, or otherwise effect any change of director, of the Listco; or |
| (d) | otherwise procure or permit a change of control over Listco or any Charged Property, |
except (a) as otherwise permitted
under clauses 15.5 and 15.22 of the Subscription Agreement or the provisions hereof; or (b) with the prior written consent of the
Investor.
7. | OPERATIONS BEFORE AND AFTER TRIGGERING EVENT |
| 7.1.1 | The Chargor shall, at all times prior to the giving of a notice in writing by the Investor to the Chargor (a “Triggering
Event”) that an Event of Default has occurred, ensure that all dividends paid or made in respect of any Charged Property are
applied in accordance with the terms of the Subscription Agreement. |
| 7.1.2 | After the occurrence of a Triggering Event, the Chargor shall promptly pay over and deliver to the Investor for application in accordance
with this Deed (and the Investor may apply in accordance with this Deed) any and all dividends, distributions, interest and/or other monies
received and/or recovered by it in respect of all or any part of the Charged Property. |
| 7.1.3 | Any and all dividends, distributions, interest and/or other monies received, recovered or paid/delivered to the order of the Chargor
(other than in cash) in respect of any or all of the Charged Property shall be held by the Chargor subject to the security constituted
by this Deed, provided that if such receipt or recovery is made after the occurrence of a Triggering Event, the Chargor shall promptly
deliver such dividends, distributions, interest and/or other monies to the Investor for application in accordance with this Deed. |
7.2 | Operation: Before Triggering Event |
Prior to the occurrence of a Triggering
Event, the Chargor shall be entitled to exercise all voting rights in relation to any or all of the Share Collateral provided that the
Chargor shall not exercise such voting rights in any manner that could give rise to, or otherwise permit or agree to, any (a) variation
of the rights attaching to or conferred by any of the Share Collateral or (b) any liability on the part of the Investor.
7.3 | Operation: After Triggering Event |
The Investor may, upon and/or after
the occurrence of a Triggering Event, at its discretion (in the name of the Chargor or otherwise and without any further consent or authority
from the Chargor):
| 7.3.1 | exercise (or refrain from exercising) any voting rights in respect of the Charged Property; |
| 7.3.2 | apply all dividends, distributions, interest and other monies arising from all or any of the Charged Property in accordance with Clause
13 (Application of Monies); |
| 7.3.3 | have the right to complete, date and put into effect any documents referred to in Clause 4.3 of this Deed or transfer all or any of
the Charged Property into the name of such nominee(s) of the Investor as it shall think fit; and |
| 7.3.4 | cause the conversion or dematerialisation of any of the Charged Property into scripless securities and the deposit of such scripless
securities into any account (whether in the name of the Investor or otherwise); and |
| 7.3.5 | exercise (or refrain from exercising) the powers and rights conferred on or exercisable by the legal or beneficial owner of the Charged
Property, including without limitation the right, in relation to any company, corporation or entity whose shares, equity interests or
other securities are included in the Charged Property or any part thereof, to concur or participate in: |
| (a) | the reconstruction, amalgamation, sale or other disposal of such company, corporation or entity or any of its assets or undertaking
(including without limitation the exchange, conversion or reissue of any shares, equity interests or securities as a consequence thereof); |
| (b) | the release, modification or variation of any rights or liabilities attaching to such shares, equity interests or securities; and |
| (c) | the exercise, renunciation or assignment of any right to subscribe for any shares, equity interests or securities, |
in
each case in such manner and on such terms as the Investor may think fit, and the proceeds of any such action shall form part of the Charged
Property and may be applied by the Investor in accordance with Clause 13 (Application of Monies).
The Chargor shall pay when due all
calls or other payments which may be or become due in respect of any of the Charged Property, and in any case of default by the Chargor
in such payment, the Investor may, if it thinks fit, make such payment on behalf of the Chargor in which case any sums paid by the Investor
shall be reimbursed by the Chargor to the Investor on demand.
| 7.5.1 | The Chargor shall not exercise any of its rights and powers in relation to any of the Charged Property in any manner which, in the
opinion of the Investor, would prejudice the value of, or the ability of the Investor to realise, the security created by this Deed. |
| 7.5.2 | The Investor shall not have any duty to ensure that any dividends, interest or other monies and assets receivable in respect of the
Charged Property are duly and punctually paid, received or collected as and when the same become due and payable or to ensure that the
correct amounts (if any) are paid or received on or in respect of the Charged Property or to ensure the taking up of any (or any offer
of any) stocks, shares, rights, monies or other property paid, distributed, accruing or offered at any time by way of redemption bonus,
rights, preference, or otherwise on or in respect of, any of the Charged Property. |
| 7.5.3 | The Chargor shall not at any time during the Security Period exercise the right to nominate any person other than the Investor or
the nominee of the Investor to enjoy or exercise any right relating to any of the Charged Property. |
8. | [INTENTIONALLY DELETED] |
9. | ENFORCEMENT OF SECURITY |
Upon and after the occurrence of a
Triggering Event or if the Chargor requests the Investor to exercise any of its powers under this Deed, the security created by or pursuant
to this Deed is immediately enforceable and the Investor may, with prior notice to the Chargor or prior authorisation from any court,
in its absolute discretion:
| 9.1.1 | assume control of, and to have it or its nominee registered as holder of legal title to, any Charged Property; |
| 9.1.2 | sell, exchange, grant options over, or otherwise dispose of, any Charged Property by any method, at any time and on any terms, it
thinks fit or to postpone doing of any of these things; |
| 9.1.3 | complete, date and deliver any document delivered to it under this Deed; |
| 9.1.4 | borrow or raise money either unsecured or on the security of the Charged Property (either in priority to the Security conferred or
intended to be conferred on the Investor by or pursuant to this Deed or otherwise); |
| 9.1.5 | settle, adjust, refer to arbitration, compromise and arrange any claims, accounts, disputes, questions and demands relating to the
Charged Property; |
| 9.1.6 | bring, prosecute, enforce, defend and abandon actions, suits and proceedings in relation to the Charged Property or any business of
the Chargor; |
| 9.1.7 | redeem any Security (whether or not having priority to the Security conferred or intended to be conferred on the Investor by or pursuant
to this Deed) over the Charged Property and to settle the accounts of any person with an interest in the Charged Property; |
| 9.1.8 | exercise and do (or permit the Chargor or any nominee of the Chargor to exercise and do) all such rights and things as the Investor
would be capable of exercising or doing if it were the absolute beneficial owner
of the Charged Property; |
| 9.1.9 | enforce all or any part of such security (at the times, in the manner and on the terms it thinks fit) and take possession of and hold
or dispose of all or any part of the Charged Property; and |
| 9.1.10 | whether or not it has appointed a Receiver, exercise all or any of the powers, authorities and discretions conferred by this Deed
on any Receiver or otherwise conferred by law on mortgagees and/or Receivers. |
9.2 | No Liability as Mortgagee in Possession |
Neither the Investor nor any Receiver
shall be liable to account as a mortgagee in possession in respect of all or any part of the Charged Property or be liable for any loss
upon realisation or for any neglect, default or omission in connection with the Charged Property to which a mortgagee or a mortgagee in
possession might otherwise be liable, unless in each case, directly caused by its wilful misconduct.
The
power of sale or other disposal conferred on the Investor and on any Receiver by this Deed shall arise (and the Secured Obligations shall
be deemed due and payable for that purpose) on execution of this Deed and shall be exercisable in accordance with Clause 9.1 (Enforcement)
and any applicable law or regulation.
Any restrictions imposed by law on
the power of sale or on the consolidation of security (including without limitation any restriction under paragraph 11 of the Fourth Schedule
to the Conveyancing and Property Ordinance (Cap. 219) of the Laws of Hong Kong) shall be excluded to the fullest extent permitted by law.
11. | APPOINTMENT OF RECEIVER |
11.1 | Appointment and Removal |
Upon and after the occurrence of a
Triggering Event or if requested to do so by the Chargor, the Investor may by deed or otherwise (acting through an authorised officer
of the Investor), without prior notice to the Chargor:
| 11.1.1 | appoint one or more persons to be a Receiver over the whole or any part of the Charged Property; |
| 11.1.2 | appoint two or more Receivers of separate parts of the Charged Property; |
| 11.1.3 | remove (so far as it is lawfully able) any Receiver so appointed; and/or |
| 11.1.4 | appoint another person(s) as an additional or replacement Receiver(s). |
11.2 | Capacity of Receivers |
Each
person appointed to be a Receiver pursuant to Clause 11.1 (Appointment and Removal) shall be:
| 11.2.1 | entitled to act individually or together with any other person appointed or substituted as Receiver; |
| 11.2.2 | for all purposes deemed to be the agent of the Chargor which shall be solely responsible for his acts, defaults and liabilities and
for the payment of his remuneration and no Receiver shall at any time act as agent for the Investor; and |
| 11.2.3 | entitled to remuneration for his services at a rate to be fixed by the Investor from time to time. |
If at any time there is more than one
Receiver, each Receiver may separately exercise all of the powers conferred by this Deed and to the exclusion of any other Receiver (unless
the document appointing such Receiver states otherwise).
11.4 | Statutory Powers of Appointment |
The powers of appointment of a Receiver
herein contained shall be in addition to all statutory and other powers of appointment of the Investor under applicable law and such powers
shall remain exercisable from time to time by the Investor in respect of all or any part of the Charged Property.
Every Receiver shall (subject to any
restrictions in the instrument appointing him but notwithstanding any winding-up or dissolution of the Chargor) have and be entitled to
exercise, in relation to the Charged Property (and any assets of the Chargor which, when got in, would be Charged Property) or that part
thereof in respect of which he was appointed, and as varied and extended by the provisions of this Deed (in the name of or on behalf of
the Chargor or in his own name and, in each case, at the cost of the Chargor):
| 12.1.1 | all the powers conferred by the Conveyancing and Property Ordinance (Cap. 219) of the Laws of Hong Kong on mortgagors
and on mortgagees in possession and on receivers appointed under that Ordinance (as if the Charged Property constituted property that
is subject to that Ordinance and as if such Receiver were appointed under that Ordinance), free from any limitation under paragraph 11
of the Fourth Schedule to that Ordinance; |
| 12.1.2 | all the powers and rights of an absolute owner and power to do or omit to do anything which the Chargor itself could do or omit to
do; and |
| 12.1.3 | the power to do all things (including without limitation bringing or defending proceedings in the name or on behalf of the Chargor)
which seem to that Receiver to be incidental or conducive to (a) any of the functions, powers, authorities or discretions conferred
on or vested in him or (b) the exercise of any Collateral Rights (including without limitation realisation of all or any part of
the Charged Property) or (c) bringing to his hands any assets of the Chargor forming, or which, when got in, would be part of the
Charged Property. |
12.2 | Additional Powers of Receiver |
In
addition to and without prejudice to the generality of the foregoing, every Receiver shall (subject to any limitations or restrictions
expressed in the instrument appointing him but notwithstanding any winding-up or dissolution of the Chargor) have the following powers
in relation to the Charged Property (and any assets of the Chargor which, when got in, would be part of the Charged Property) in respect
of which he was appointed (and every reference in this Clause 12.2 to the “Charged Property” shall be read as
a reference to that part of the Charged Property in respect of which such Receiver was appointed):
power to enter upon, take immediate
possession of, collect and get in the Charged Property including without limitation dividends and other income whether accrued before
or after the date of his appointment;
| 12.2.2 | Proceedings and Claims |
power to bring, prosecute, enforce,
defend and abandon applications, claims, disputes, actions, suits and proceedings in connection with all or any part of the Charged Property
or this Deed in the name of the Chargor or in his own name and to submit to arbitration, negotiate, compromise and settle any such applications,
claims, disputes, actions, suits or proceedings;
power to carry on and manage, or concur
in the carrying on and management of or to appoint a manager of, the whole or any part of the Charged Property or any business relating
thereto in such manner as he shall in his absolute discretion think fit;
| 12.2.4 | Deal with Charged Property |
power, in relation to the Charged Property
and each and every part thereof, to sell, transfer, convey, dispose of or concur in any of the foregoing by the Chargor or any other receiver
or manager of the Chargor (including without limitation to or in relation to the Investor) in such manner and generally on such terms
as he thinks fit;
power to purchase, lease, hire or otherwise
acquire any assets or rights of any description which he shall in his absolute discretion consider necessary or desirable for the carrying
on, improvement or realisation of the whole or any part of the Charged Property or otherwise for the benefit of the whole or any part
of the Charged Property;
power to promote, procure the formation
or otherwise acquire the share capital of, any body corporate with a view to such body corporate becoming a subsidiary of the Chargor
or otherwise and purchasing, leasing or otherwise acquiring an interest in the whole or any part of the Charged Property or carrying on
any business in succession to the Chargor or any subsidiary of the Chargor;
power to effect, maintain or renew
indemnity and other insurances and to obtain bonds and performance guarantees;
power to raise or borrow money from
the Investor or any other person to rank either in priority to the security constituted by this Deed or any part of it or otherwise and
with or without a mortgage or charge on the Charged Property or any part of it on such terms as he shall in his absolute discretion think
fit (and no person lending such money shall be concerned to see or enquire as to the propriety or purpose of the exercise of such power
or the application of money so raised or borrowed);
| 12.2.9 | Redemption of Security |
power to redeem, discharge or compromise
any security whether or not having priority to the security constituted by this Deed or any part of it;
| 12.2.10 | Covenants, Guarantees and Indemnities |
power to enter into bonds, covenants,
guarantees, commitments, indemnities and other obligations or liabilities as he shall think fit, to make all payments needed to effect,
maintain or satisfy such obligations or liabilities and to use the company seal of the Chargor; and
| 12.2.11 | Exercise of Powers in Chargor’s Name |
power to exercise any or all of the
above powers on behalf of and in the name of the Chargor (notwithstanding any winding-up or dissolution of the Chargor) or on his own
behalf.
In
making any sale or other disposal of all or any part of the Charged Property or any acquisition in the exercise of their respective powers
(including without limitation a disposal by a Receiver to any subsidiary of the Chargor or other body corporate as is referred to in Clause
12.2.6), a Receiver or the Investor may accept or dispose of as, and by way of consideration for, such sale or other disposal or
acquisition, cash, shares, loan capital or other obligations, including without limitation consideration fluctuating according to or dependent
upon profit or turnover and consideration the amount whereof is to be determined by a third party. Any such consideration may, if thought
expedient by the Receiver or the Investor, be nil or may be payable or receivable in a lump sum or by instalments. Any contract for any
such sale, disposal or acquisition by the Receiver or the Investor may contain conditions excluding or restricting the personal liability
of the Receiver or the Investor.
12.4 | Relationship with Investor |
To the fullest extent allowed by law,
any right, power or discretion conferred by this Deed (either expressly or impliedly) or by law on a Receiver may after the Security conferred
or intended to be conferred on the Investor by or pursuant to this Deed becomes enforceable be exercised by the Investor in relation to
any Charged Property without first appointing a Receiver and notwithstanding the appointment of a Receiver.
Save
as otherwise expressly provided in this Deed, all moneys and/or non-cash recoveries and/or proceeds received or recovered by the Investor
or any Receiver pursuant to this Deed or the powers conferred by it shall (subject to the claims of any person having prior rights thereto
and subject to Clause 13.2 (Suspense Account)) be applied:
| 13.1.1 | first, in the payment of the costs, charges and expenses incurred and payments made by any Receiver, the payment of his remuneration
and the discharge of any liabilities incurred by such Receiver in, or incidental to, the exercise of any of his powers; |
| 13.1.2 | second, be applied by the Investor as the Investor shall think fit in discharge of the Secured Obligations; and |
| 13.1.3 | third, following such payments, the remaining balance (if any) shall be paid to the Chargor for its rights and interests or such other
person as may be entitled thereto. |
All monies received, recovered or
realised under this Deed by the Investor or any Receiver or the powers conferred by it (including the proceeds of any conversion of currency)
may in its discretion be credited to and held in any suspense or impersonal account pending their application from time to time in
or towards the discharge of any of the Secured Obligations in accordance with Clause 13.1 (Order of Application).
13.3 | Application by Chargor |
Any
application under this Clause 13 shall override any application by the Chargor.
14. | RECEIPT AND PROTECTION OF PURCHASERS |
14.1 | Receipt and Consideration |
The receipt of the Investor or any
Receiver shall be conclusive discharge to a purchaser of any part of the Charged Property from the Investor or such Receiver and in making
any sale or disposal of any part of the Charged Property or making any acquisition, the Investor or any Receiver may do so for such consideration,
in such manner and on such terms as it thinks fit.
14.2 | Protection of Purchasers |
No purchaser or other person dealing
with the Investor or any Receiver shall be bound to inquire whether the right of the Investor or such Receiver to exercise any of its
powers has arisen or become exercisable or be concerned with any propriety or regularity on the part of the Investor or such Receiver
in such dealings. No person (including a purchaser) dealing with the Investor or a Receiver or its or his agents will be obliged or concerned
to enquire:
| (a) | whether the Secured Obligations have become payable; |
| (b) | whether any power which the Investor or a Receiver is purporting to exercise has become exercisable or is being properly exercised; |
| (c) | whether any money remains due under the Transaction Documents; or |
| (d) | how any money paid to the Investor or to that Receiver is to be applied. |
The protection given to purchasers
from a mortgagee in sections 52 and 55 of the Conveyancing and Property Ordinance (Cap. 219) of the Laws of Hong Kong shall apply mutatis
mutandis to purchaser(s) and other person(s) dealing with the Investor or any Receiver.
15.1 | Appointment and Powers |
The Chargor by way of security irrevocably
(within the meaning of Section 4 of the Powers of Attorney Ordinance (Cap. 31) of the Laws of Hong Kong) appoints the Investor and
any Receiver severally to be its attorney and in its name, on its behalf to execute, deliver and perfect all documents and do all things
which the Investor or such Receiver may consider to be necessary for:
| 15.1.1 | carrying out any obligation imposed on the Chargor by this Deed or any other agreement binding on the Chargor to which the Investor
is party (including without limitation the execution and delivery of any deeds, charges, assignments or other security and any transfers
of the Charged Property or any part thereof); and |
| 15.1.2 | enabling the Investor and any Receiver to exercise, or delegate the exercise of, any of the rights, powers and authorities conferred
on them by or pursuant to this Deed or by law (including, without limitation, upon or after the occurrence of a Triggering Event, the
exercise of any right of a legal or beneficial owner of the Charged Property or any part thereof). |
The Chargor shall ratify and confirm
all things done and all documents executed by any attorney in the lawful exercise or purported exercise of all or any of his powers pursuant
to this Deed.
The Chargor represents and warrants
to the Investor that:
| 16.1.1 | it is a company with limited liability, duly incorporated, validly existing and in good standing under the laws of the British Virgin
Islands; |
| 16.1.2 | subject to Legal Reservations, each of the obligations expressed to be assumed by it in this Deed are legal, valid, binding and enforceable
obligation, and this Deed creates the security interests which it purports to create and such security interests are valid and effective; |
| 16.1.3 | the entry into and performance by it of, and the transactions contemplated by, this Deed do not and will not: |
| (a) | conflict with any law or regulation applicable to it; |
| (b) | conflict with its constitutional documents; |
| (c) | conflict with any agreement or instrument binding upon it or any of its assets; or |
| (d) | result in the existence of or oblige it to create any security over all or any of its assets (other than the security constituted
pursuant to this Deed); |
| 16.1.4 | it has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and
delivery of, this Deed; |
| 16.1.5 | no limit on its powers will be exceeded as a result of the grant of security contemplated by this Deed; |
| 16.1.6 | all Approvals required or desirable: |
| (a) | to enable it lawfully to enter into, exercise its rights and comply with its obligations in this Deed; |
| (b) | to make this Deed admissible in evidence in its jurisdiction of incorporation and/or Hong Kong; and/or |
| (c) | to enable it to create the security expressed to be created by it pursuant to this Deed and to ensure that such security has the priority
and ranking it is expressed to have, |
|
|
have been obtained or effected and are in full force and
effect; |
| 16.1.7 | subject to Legal Reservations, the choice of the laws of Hong Kong as the governing law of this Deed will be recognised and enforced
in its jurisdiction of incorporation and in the courts of Hong Kong; |
| 16.1.8 | subject to Legal Reservations, any judgment obtained in the courts of Hong Kong in relation to this Deed will be recognised and enforced
in its jurisdiction of incorporation and/or Hong Kong; |
| 16.1.9 | save and except for those as set out in Clause 4, under the law of its jurisdiction of incorporation it is not necessary that this
Deed be filed, recorded or enrolled with any court or other authority in that jurisdiction or that any stamp, registration or similar
tax be paid on or in relation to this Deed; |
| 16.1.10 | all consents necessary to enable any asset that is expressed to be subject to any security under this Deed to be the subject of effective
security under this Deed have been obtained and are in full force and effect; |
| 16.1.11 | it is, and will be, the sole beneficial owner of the Charged Property free from security (other than the security constituted pursuant
to this Deed) and this Deed creates in favour of the Investor first ranking Security Interest over the Charged Property; |
| 16.1.12 | it has not sold or otherwise disposed of, or created, granted or permitted to subsist any security over, all or any of its right,
title and interest in the Charged Property (other than the security constituted pursuant to this Deed and other than as expressly permitted
under this Deed); |
| 16.1.13 | the Share Collateral have been validly issued and allotted by the Listco and are fully paid up and there are no monies or liabilities
payable or outstanding by the Chargor in relation to any of the Shares; |
| 16.1.14 | it is solvent and: |
| (a) | no petition has been presented, no order has been made, or resolution passed for the winding up of the Chargor or for the appointment
of a liquidator or provisional liquidator to the Chargor; |
| (b) | no administrator has been appointed in relation to the Chargor and to the best information and knowledge of the Chargor, no notice
has been given or filed with the court of an intention to appoint an administrator and no petition or application has been presented or
order has been made for the appointment of an administrator in respect of the Chargor; |
| (c) | no receiver or administrative receiver or manager has been appointed, to the best information and knowledge of the Chargor, no notice
has been given of the appointment of any such person, over the whole or part of the business or assets of the Chargor; |
| (d) | the Chargor has not proposed or agreed to a composition, compromise, assignment or arrangement with any of its creditors; and |
| (e) | to the best information and knowledge of the Chargor, the Chargor is not subject to or threatened by any other procedures or steps
which are analogous to those set out above. |
| 16.1.15 | no Event of Default is continuing or might reasonably be expected to result from the entry into, the performance of, or any transaction
contemplated by this Deed; |
| 16.1.16 | to the best of the knowledge and information of the Chargor, no other event or circumstance is outstanding which constitutes (or,
with the expiry of a grace period, the giving of notice, the making of any determination or any combination of any of the foregoing, would
constitute) a default or termination event (however described) under any other agreement or instrument which is binding on it or to which
its assets are subject; and |
| 16.1.17 | to the best information and knowledge of the Chargor, no litigation, arbitration, investigation or administrative proceedings of or
before any court, arbitral body or agency been started or threatened, or is pending, against it or its assets which may have a Material
Adverse Effect. |
Each of the representations and warranties
above shall be deemed to be repeated by the Chargor on each day of the Security Period by reference to the facts and circumstances existing
at the date on which such representation or warranty is deemed to be made or repeated.
| 17.1 | The Chargor shall not and shall procure that there shall not be any sale, transfer or disposal of any Shares or Charged Property or
any interest therein, without the prior written consent of the Investor. |
| 17.2 | The Chargor hereby covenants during the Security Period it will remain the legal and the beneficial owner of the Charged Property
(subject only to the security created by this Deed) and that it shall not: |
| 17.2.1 | create or permit to subsist any security (other than that created by this Deed) on or in respect of the whole of any part of the Charged
Property or any of its interest therein; or |
| 17.2.2 | sell, lease, assign, lend, dispose of, transfer or otherwise deal with any of its interest in the Charged Property (other than pursuant
to this Deed) and in any such case, without the prior written consent of the Investor; or |
| 17.2.3 | do, or permit to be done, any act or thing that would or might depreciate, jeopardise or otherwise prejudice the security held by
the Investor, or diminish the value of any of the Charged Property or the effectiveness of the security created by this Deed. The Chargor
shall, promptly on becoming aware, notify the Investor in writing of any representation or warranty set out in Clause 16.1 of this Deed
which is incorrect or misleading in any material respect when made or deemed to be repeated and any breach of any covenant set out in
this Deed. |
17.3 | The Chargor shall deliver to the Investor as soon as reasonably practicable immediately upon receipt by the Chargor copies of all
notices of general meetings, proposed shareholder resolutions of the Listco, financial statements and all other materials distributed
to, or requiring action by, shareholders of the Listco from time to time and all other materials and information distributed by the Listco
to, or requiring action by, the shareholders of the Listco and such other information concerning the Listco (that the Chargor as a shareholder
of the Listco would have known) as the Investor shall from time to time request. |
17.4 | The Chargor shall remain liable to perform all the obligations assumed by it in relation to the Charged Property and the Investor
shall be under no obligation of any kind whatsoever in respect thereof or be under any liability whatsoever in the event of any failure
by the Chargor to perform its obligations in respect thereof. |
17.5 | The Chargor shall not take, or allow the taking of, any action on its behalf which may result in the rights attaching to, or conferred
by, all or any of the Charged Property being altered. |
17.6 | The Chargor shall not waive, release, settle, compromise, abandon or set-off any claim or the liability of any person in respect of
the Related Rights, or do or omit to do any other act or thing whereby the recovery in full of the Related Rights as and when they become
payable may be impeded. |
18. | EFFECTIVENESS OF SECURITY |
The security created by or
pursuant to this Deed shall remain in full force and effect as a continuing security for the Secured Obligations unless and until
discharged by the Investor. No part of the security from time to time intended to be constituted by this Deed will be considered
satisfied or discharged by any intermediate payment, discharge or satisfaction of the whole or any part of the Secured
Obligations.
The security created by this Deed and
the Collateral Rights shall be cumulative, in addition to and independent of every other security which the Investor may at any time hold
for any or all of the Secured Obligations or any rights, powers and remedies provided by law. No prior security held by the Investor over
the whole or any part of the Charged Property shall merge into the security constituted by this Deed.
18.3 | Chargor’s Obligations |
None
of the obligations of the Chargor under this Deed or the Collateral Rights shall be affected by an act, omission, matter, thing or event
which, but for this Clause 18.3, would reduce, release or prejudice any of its obligations under this Deed including (without limitation
and whether or not known to it or the Investor):
| 18.3.1 | the winding-up, dissolution, administration, reorganisation, death, insolvency, incapacity or bankruptcy of the Chargor or any other
person or any change in its status, function, control or ownership; |
| 18.3.2 | any of the obligations of the Chargor or any other person under any Transaction Document being or becoming illegal, invalid, unenforceable
or ineffective in any respect; |
| 18.3.3 | any time, waiver or consent granted to, or composition with, the Chargor or any other person; |
| 18.3.4 | the release of the Chargor or any other person under the terms of any composition or arrangement with any creditor of the Chargor
or any other person; |
| 18.3.5 | the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights
against, or security over assets of, the Chargor or other person or any non-presentation or non-observance of any formality or other requirement
in respect of any instrument or any failure to realise the full value of any security; |
| 18.3.6 | any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of the Chargor
or any other person; |
| 18.3.7 | any amendment, novation, supplement, extension (whether of maturity or otherwise) or restatement (in each case however fundamental
and of whatsoever nature, and whether or not more onerous) or replacement of a Transaction Document or any other document or security
or of the Secured Obligations; |
| 18.3.8 | any unenforceability, illegality or invalidity of any obligation of any person under any Transaction Document or any other document
or security; |
| 18.3.9 | any insolvency or similar proceedings; |
| 18.3.10 | any claims or set-off right that the Chargor may have; or |
| 18.3.11 | any law, regulation or decree or order of any jurisdiction affecting the Chargor. |
Without
prejudice to the generality of Clause 18.3(Chargor’s Obligations), the Chargor expressly confirms that it intends
that the security created under this Deed, and the Collateral Rights, shall extend from time to time to any (however fundamental and of
whatsoever nature, and whether or not more onerous) variation, increase, extension or addition of or to any of the Transaction Documents
or any other security relating to any Transaction Document.
| (a) | No failure on the part of the Investor to exercise, or any delay on its part in exercising, any Collateral Right shall operate as
a waiver thereof, nor shall any single or partial exercise of any Collateral Right preclude any further or other exercise of that or any
other Collateral Right. |
| (b) | No election by the Investor or any Receiver to affirm this Deed or to waive any Collateral Rights shall be effective unless it is
in writing. |
| (c) | The Collateral Rights are cumulative and not exclusive of the rights of the Investor or any Receiver under the general law. No single
or partial exercise of any Collateral Right shall preclude any further or other exercise of that or any other Collateral Right. |
The Chargor waives any right it may
have of first requiring the Investor (or any trustee or agent on its behalf) to proceed against or enforce any other right or security
or claim payment from any person or file any proof or claim in any insolvency, administration, winding-up or liquidation proceedings relative
to any other person before claiming from the Chargor under this Deed.
None of the Investor, its nominee(s) or
any Receiver shall be liable by reason of (a) taking any action permitted by this Deed or (b) any neglect or default in connection
with all or any part of the Charged Property or (c) taking possession of or realising all or any part of the Charged Property, except
in the case of wilful default upon its part (as finally judicially determined).
If, at any time, any provision of
this Deed is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality,
validity or enforceability of the remaining provisions of this Deed under such laws nor of such provision under the laws of any
other jurisdiction shall in any way be affected or impaired thereby and, if any part of the security intended to be created by or
pursuant to this Deed is invalid, unenforceable or ineffective for any reason, that shall not affect or impair any other part of
that security.
The Investor shall not be obliged to
make any demand of or enforce any rights or claim against the Chargor or any other person, to take any action or obtain judgment in any
court against the Chargor or any other person or to make or file any proof or claim in a liquidation, bankruptcy or insolvency of the
Chargor or any other person or to enforce or seek to enforce any other security in respect of any or all of the Secured Obligations before
exercising any Collateral Right.
Until the time when (i) all Secured
Obligations have been irrevocably discharged in full and (ii) all amounts which may be or become payable by the Chargor and the Chargor
under or in connection with the Transaction Documents have been irrevocably paid in full, the Chargor will not (unless the Investor otherwise
directs) exercise any rights which it may have by reason of performance by it of its obligations under this Deed:
| 18.10.1 | to be indemnified by the Chargor; |
| 18.10.2 | to claim any contribution from any guarantor (if any) of the Chargor’s obligations under any or all of the Transaction Documents;
and/or |
| 18.10.3 | to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Investor under the Transaction
Documents or of any other guarantee or security taken pursuant to, or in connection with, the Transaction Documents by the Investor. |
18.11 | Settlement conditional |
Any settlement, discharge or release
hereunder in relation to the Chargor or all or any part of the Charged Property shall be conditional upon no security or payment by the
Chargor to the Investor being avoided or reduced by virtue of any bankruptcy, insolvency, liquidation or similar laws of general application
or any similar event or for any other reason and shall in the event of any such avoidance or reduction or similar event be void and the
liability of the Chargor under this Deed and the Security created by this Deed shall continue as if such payment, settlement, discharge
or release had not occurred.
19.1 | Redemption of Security |
Upon the time when (i) all
Secured Obligations have been irrevocably discharged in full, and (ii) all amounts which may be or become payable by the
Chargor under or in connection with the Transaction Documents have been irrevocably paid in full, the Investor
shall, at the request (with reasonable notice) and cost of the Chargor, as soon as reasonably practicable, release and cancel the
security constituted by this Deed on the relevant Share Collateral or any balance paid by the Chargor under Clause 3.2 (Fixed
Charge) and procure the reassignment to the Chargor of the property and assets assigned to the Investor and the return to the
Chargor of the certificates and documents delivered to the Investor pursuant to this Deed (to the extent not otherwise sold,
assigned or otherwise disposed of or applied in accordance with this Deed), in each case subject to Clauses 19.2 (Avoidance of
Payments) and 18.11 (Settlement conditional) and without recourse to, or any representation or warranty by, the Investor
or any of its nominees.
19.2 | Avoidance of Payments |
If the Investor reasonably considers
that any amount paid or credited to or recovered by the Investor from the Chargor is capable of being avoided or reduced by virtue of
any bankruptcy, insolvency, liquidation or similar laws, the liability of the Chargor under this Deed and the security constituted by
this Deed shall continue and such amount shall not be considered to have been irrevocably paid.
20. | SUBSEQUENT AND PRIOR SECURITY INTERESTS |
20.1 | Subsequent security interests |
If the Investor (acting in its capacity
as chargee or otherwise) at any time receives or is deemed to have received notice of any subsequent security or other interest affecting
all or any part of the Charged Property or any assignment or transfer of the Charged Property which is prohibited by the terms of this
Deed or the Transaction Documents, all payments thereafter by or on behalf of the Chargor to the Investor shall be treated as having been
credited to a new account of the Investor and not as having been applied in reduction of the Secured Obligations as at the time when (or
at any time after) the Investor received such notice of such subsequent security or other interest or such assignment or transfer.
20.2 | Prior security interests |
In the event of any action, proceeding
or step being taken to exercise any powers or remedies conferred by any prior ranking security or upon the exercise by the Investor or
any Receiver of any power of sale under this Deed or any Collateral Right, the Investor may redeem any prior ranking security over or
affecting any Charged Property or procure the transfer of any such prior ranking security to itself. The Investor may settle and agree
the accounts of the beneficiary of any such prior security and any accounts so settled and agreed will be conclusive and binding on the
Chargor. All principal, interest, costs, charges, expenses and/or other amounts relating to and/or incidental to any such redemption or
transfer shall be paid by the Chargor to the Investor upon demand.
21. | CURRENCY CONVERSION AND INDEMNITY |
For the purpose of or pending the discharge
of any of the Secured Obligations the Investor may convert any money received, recovered or realised or subject to application by it under
this Deed from one currency to another, as the Investor may think fit, and any such conversion shall be effected at the Investor’s
spot rate of exchange (or, if no such spot rate of exchange is quoted by the Investor, such other rate of exchange as may be available
to the Investor) for the time being for obtaining such other currency with such first-mentioned currency.
If any sum (a “Sum”)
owing by the Chargor under this Deed or any order or judgment given or made in relation to this Deed has to be converted from the currency
(the “First Currency”) in which such Sum is payable into another currency (the “Second Currency”)
for the purpose of:
| 21.2.1 | making or filing a claim or proof against the Chargor; |
| 21.2.2 | obtaining an order or judgment in any court or other tribunal; |
| 21.2.3 | enforcing any order or judgment given or made in relation to this Deed; or |
| 21.2.4 | applying the Sum in satisfaction of any of the Secured Obligations, |
the Chargor shall indemnify the Investor
from and against any loss suffered or incurred as a result of any discrepancy between (a) the rate of exchange used for such purpose
to convert such Sum from the First Currency into the Second Currency and (b) the rate or rates of exchange available to the Investor
at the time of such receipt or recovery of such Sum.
22. | COSTS, EXPENSES AND INDEMNITY |
The Chargor shall, on demand of the
Investor, reimburse the Investor on a full indemnity basis for all costs and expenses (including legal fees and any value added tax) incurred
by the Investor in connection with (a) the execution of this Deed or otherwise in relation to this Deed, including but not limited
to costs and expenses relating to any amendment of this Deed, (b) the perfection or enforcement of the security constituted by this
Deed, (c) the exercise of any Collateral Right, together with interest from the date such costs and expenses were incurred to the
date of reimbursement of the same by the Chargor, and/or (d) the release of the security constituted by this Deed.
The Chargor shall pay all stamp, registration
and other Taxation to which this Deed, the security contemplated in this Deed and/or any judgment given in connection with this Deed is,
or at any time may be, subject and shall, from time to time, indemnify the Investor on demand against any liabilities, costs, claims and/or
expenses resulting from any failure to pay or delay in paying any such Tax.
The Chargor shall, notwithstanding
any release or discharge of all or any part of the security constituted by this Deed, indemnify the Investor, its agents, attorneys and
any Receiver against any action, proceeding, claims, losses, liabilities and costs which it may sustain as a consequence of any breach
by the Chargor of the provisions of this Deed, the exercise or purported exercise of any of the rights and powers conferred on any of
them by this Deed or otherwise relating to the Charged Property or any part thereof.
23. | PAYMENTS FREE OF DEDUCTION |
All payments to be made to the Investor
under this Deed shall be made free and clear of and without deduction for or on account of any Taxation unless the Chargor is required
to make such payment subject to the deduction or withholding of any Taxation, in which case the sum payable by the Chargor in respect
of which such deduction or withholding is required to be made shall be increased to the extent necessary to ensure that, after the making
of such deduction or withholding, the person on account of whose liability to tax such deduction or withholding has been made receives
and retains (free from any liability in respect of any such deduction or withholding) a net sum equal to the sum which it would have received
and so retained had no such deduction or withholding been made or required to be made.
23.2 | No set-off or counterclaim |
All payments to be made by the Chargor
under this Deed shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.
24. | DISCRETION AND DELEGATION |
Any liberty or power which may be exercised
or any determination which may be made under this Deed by the Investor or any Receiver may, subject to the applicable terms and conditions
of, as the case may be, the Transaction Documents, be exercised or made in its absolute and unfettered discretion without any obligation
to give reasons.
Each
of the Investor and any Receiver shall have full power to delegate (either generally or specifically) the powers, authorities and discretions
conferred on it by this Deed (including without limitation the power of attorney under Clause 15 (Power of Attorney)) on
such terms and conditions as it shall see fit which delegation shall not preclude any subsequent exercise, any subsequent delegation or
any revocation of such power, authority or discretion by the Investor or any Receiver.
In acting as investor and chargee,
the Investor shall have the benefit of all indemnities, protections and rights on its part set out in the Transaction Documents, as if
set out fully herein
The Investor may set off any matured
obligation due from the Chargor under any or all of the Transaction Documents (to the extent beneficially owned by the Investor) against
any matured obligation owed by the Investor to the Chargor, regardless of the place of payment, booking branch or currency of either obligation.
If such obligations are in different currencies, the Investor may convert either obligation at a market rate of exchange in its usual
course of business for the purpose of such set-off.
This Deed shall be binding upon and
enure to the benefit of each party hereto and its and/or any subsequent successors and permitted assigns and transferees. Without prejudice
to the foregoing, this Deed shall remain in effect despite any amalgamation or merger (however effected) relating to the Investor; and
references to the Investor herein shall be deemed to include any person who, under the laws of its jurisdiction of incorporation or domicile,
has assumed the rights and obligations of the Investor under this Deed or to which, under such laws, those rights and obligations have
been transferred.
26.2 | No Assignment or Transfer by Chargor |
The Chargor may not assign or transfer
any or all of its rights (if any) and/or obligations under this Deed.
26.3 | Assignment or Transfer by Investor |
The Investor may assign or transfer
any or all of its rights (if any) and/or obligations under this Deed.
The Investor shall be entitled to disclose
such information concerning the Chargor or any other person and this Deed as the Investor considers appropriate to any actual or proposed
direct or indirect successor or to any person to whom information may be required to be disclosed by applicable law.
27. | AMENDMENTS AND WAIVERS |
27.1 | Any provision of this Deed may be amended or waived only by agreement in writing between the Chargor and the Investor. No third party’s
signature is required for any amendment. |
27.2 | No failure on the part of the Investor to exercise, or delay on its part in exercising, any or all of its rights hereunder shall operate
as a waiver thereof or constitute an election to affirm this Deed. No election to affirm this Deed on the part of the Investor shall be
effective unless it is in writing. No single or partial exercise of any such right or remedy shall preclude any further or other exercise
of such or any other right or remedy. |
28.1 | Any notice, claim or demand in connection with this Deed shall be in writing, in English language, and marked “IMPORTANT LEGAL
NOTICE” (each a “Notice”), and shall be delivered or sent to the recipient at its/his email address, or address
(where applicable) listed below, or any other email address or address notified to the sender by the recipient for the purposes of this
Instrument: |
To the Chargor: |
GenTao Capital Limited
Address: 10 Jiuxianqiao East Road, Chaoyang
District, Beijing 100016
Email:
Josh.Chen@vnet.com
Attention: Cheng Sheng |
|
|
To the Investor: |
Shining Rich Holdings Limited 耀富控股有限公司
Email:
workforpapper@163.com
Attention: Fang Li / Tong Lin |
28.2 | If any Investor that is a natural Person dies, until the Party giving a Notice has received notice in writing of the grant of probate
of his will or letters of administration of his estate (or equivalent), any Notice so given shall be as effectual as if he was still living. |
28.3 | Without prejudice to Clause 28.2, any Notice shall be deemed to have been served: (a) if served by hand, when delivered and proof
of delivery is obtained by the delivery party, (b) if served by overnight courier, on the next Business Day, or (c) if sent
by email, only when received in legible form by at least one of the relevant email addresses of the person(s) to whom the communication
is made. Any Notice received on a Sunday or public holiday shall be deemed to be received on the next Business Day. |
This Deed may be executed in any number of counterparts,
all of which taken together shall constitute one and the same instrument.
30.1 | A Person who is not a Party has no right under the Contracts (Rights of Third Parties) Ordinance (Chapter 623 of the laws of Hong
Kong) to enforce or to enjoy the benefit of any term of this Deed. |
30.2 | Notwithstanding any term of this Deed, the consent of any person who is not a Party is not required to rescind or vary this Deed at
any time. |
This Deed shall be governed by and shall be construed in
accordance with Hong Kong law.
32.1 | With respect to any dispute, controversy or claim arising out of or relating to this Deed, including the existence, validity, performance,
interpretation, construction, breach or termination thereof or the consequences of its nullity (each a “Dispute”),
the Parties hereby irrevocably submit to the exclusive jurisdiction of the Hong Kong courts. |
32.2 | The parties hereto agree that the courts of Hong Kong are the most appropriate and convenient courts to settle Disputes between them
and, accordingly, that they will not argue to the contrary. |
32.3 | This Clause 32 is for the benefit of the Investor only. As a result and notwithstanding Clause 32.2, nothing herein shall prevent
the Investor from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law the Investor
may take concurrent proceedings in any number of jurisdictions. |
32.4 | The Chargor hereby waives with respect of this Deed any right to claim sovereign immunity from jurisdiction or execution or any similar
defence, and irrevocably consents to the giving of any relief or the issue of any process, including, without limitation, the making,
enforcement or execution against any property whatsoever (irrespective of its use or intended use) of any order of judgment made or given
in connection with any proceedings arising out of or in connection with this Deed. |
33.1 | Without prejudice to any other mode of service allowed under any relevant law, the Chargor irrevocably appoints VNET Group Limited
of 37/F., Tower 1 Metroplaza, Hing Fong Road, Kwai Fong, Hong Kong as its agent under this Deed for service of process in any proceedings
before the Hong Kong courts in connection with this Deed. |
33.2 | If any person appointed as process agent under this Clause is unable for any reason to so act, the Chargor must immediately (and in
any event within five (5) days of the event taking place) appoint another agent on terms acceptable to the Investor. Failing this,
the Investor may appoint another process agent for this purpose. |
33.3 | The Chargor agrees that failure by a process agent to notify it of any process will not invalidate the relevant proceedings. |
33.4 | This Clause does not affect any other method of service allowed by law. |
SCHEDULE 1
FORM OF INSTRUMENT OF TRANSFER
Instrument of transfer
The undersigned, GenTao Capital Limited (the “Transferor”)
does hereby transfer to:
(the “Transferee”),
_____________Class _____________ordinary
shares standing in our name in the undertaking called
VNET
Group, Inc. (世纪互联集团)
to hold the same unto the Transferee. Signed by the Transferor:
For and on behalf of
GenTao Capital Limited
Name:
Title:
Date:
Signed by the Transferee:
For and on behalf of
[Name of Transferee]
Name:
Title:
Date:
SCHEDULE 2
FORM OF ACKNOWLEDGMENT FROM NOMINEE
To: | Shining Rich Holdings Limited 耀富控股有限公司
(the “Investor”, which expression shall include its successors, assigns and transferees) |
Copy to: GenTao Capital Limited of [address]
Dear Sirs,
At the request of GenTao Capital Limited, I/we hereby:
1. | warrant and confirm that I am/we are the registered holder(s) of [insert number and description of relevant Shares] in
VNET Group, Inc. (世纪互联集团)
(the “Shares”) and am/are holding the Shares as nominee for and on behalf of the Chargor; |
2. | acknowledge that the Chargor has, pursuant to a deed of Charge over Shares (as amended and/or supplemented from time to time, the
“Deed”) dated_________________ 2024 by the Chargor
in favour of the Investor, charged and/or granted security over the Shares in favour of you as security upon the terms and conditions
specified therein; |
3. | undertake that [I]/[we] shall, upon and at all times after the earlier of being requested by you to do so or the enforcement of the
security constituted by the Deed in respect of the Shares, hold the Shares on trust for you (or any other person whom you may nominate); |
4. | undertake that [I]/[we] shall, upon being requested by you to do so, transfer the legal title in the Shares to you (or any other person
whom you may nominate) and do all acts and execute all documents as may be necessary and/or as you may require for such purpose; and |
5. | irrevocably and unconditionally appoint each of you and any Receiver (as defined in the Deed) severally to be [my]/[our] attorney
on the terms of Clause 15 (Power of Attorney) of the Deed (applying mutatis mutandis) as if [I was]/[we were] the Chargor,
and undertake to execute such further powers of attorney in such form as you may reasonably require from time to time. |
This acknowledgment is governed by and shall be construed
in accordance with the laws of Hong Kong.
Dated:
IN WITNESS WHEREOF this deed has been executed the day and
year above written.
[in the case where the relevant nominee is incorporated
in Hong Kong or a company incorporated outside Hong Kong which has a company seal]
THE COMMON SEAL of
[name of nominee]
was hereunto affixed in the presence of: |
)
)
) |
[Director][Authorised Signatory]
OR
[in the case where the relevant nominee is a company
incorporated outside of Hong Kong and does not have any company seal]
SIGNED, SEALED and DELIVERED |
) |
as a DEED by |
) |
[name of relevant authorised signatory] |
) |
for and on behalf of |
) |
[name of relevant nominee] |
) |
in the presence of |
) |
Signature of witness: |
|
Name of witness: |
|
Title: |
|
Address of witness: |
|
|
|
|
|
Occupation of witness: |
|
OR
[in the case where the relevant nominee is an individual]
SIGNED, SEALED and DELIVERED |
) |
as a DEED by |
) |
[name of relevant nominee] |
) |
in the presence of |
) |
Signature of witness: |
|
Name of witness: |
|
Title: |
|
Address of witness: |
|
|
|
|
|
Occupation of witness: |
|
SCHEDULE 3
FORM OF IRREVOCABLE APPOINTMENT OF PROXY
AND POWER OF ATTORNEY
VNET
Group, Inc. (世纪互联集团)
We,
GenTao Capital Limited, hereby irrevocably appoint Shining Rich Holdings Limited 耀富控股有限公司
and its successors, permitted transferees and permitted assigns as our:
| 1. | proxy
to vote at meetings of the members of VNET Group, Inc. (世纪互联集团)
(the “Company”) in respect of the___________________ordinary shares in the Company, represented by share certificate
number___________________(the “Shares”), which are issued and/or registered in our name; and |
| 2. | duly authorised representative and duly appointed attorney-in-fact to sign resolutions in writing of the Company in respect of the
Shares. |
The
Shares have been mortgaged and/or charged to Shining Rich Holdings Limited
耀富控股有限公司 pursuant to a charge over
shares dated ___________________2024 between GenTao Capital Limited as chargor and Shining Rich Holdings Limited 耀富控股有限公司 as
chargee.
This
proxy and power of attorney are irrevocable by reason of being coupled with the interest of Shining Rich Holdings Limited 耀富控股有限公司and
its successors, permitted transferees and permitted assigns as chargee of the Shares.
(The remainder of this page is intentionally
left blank)
This
Deed has been executed as a deed this_________day of___________________2024
EXECUTED
and DELIVERED
as a deed by
, its authorised director
for and on behalf of
GENTAO CAPITAL LIMITED |
)
)
)
)
)
)
) |
Signature of director
Name: |
|
SCHEDULE 4
FORM OF NOTICE OF CHARGE
_____________________2024
VNET
Group, Inc. (世纪互联集团) (the “Company”)
c/o Maples Corporate Services
Limited
PO Box 309, Ugland House
Grand Cayman, KY1-1104
Cayman Islands
Dear Sirs
CHARGE OVER SHARES
We hereby notify you that
pursuant to a charge over shares (the “Charge over Shares”) dated _____________________2024
between GenTao Capital Limited as chargor (the “Chargor”) and Shining Rich Holdings Limited
耀富控股有限公司 as chargee (the
“Investor”, which expression shall include its successors, permitted transferees and permitted assigns) (a copy
of which is attached for your records), the Chargor has, inter alia, charged, by way of a first fixed
charge,_____________________class ordinary shares in the Company owned by the Chargor, represented by share certificate[s] number___
[and ___ respectively] (the “Charged Shares”) and charged, by way of a first fixed charge, all of all rights,
benefits and advantages now or at any time in the future deriving from or incidental to any of the Charged Shares
including:
(a) | any proceeds of sale, transfer, redemption, substitution, exchange, conversion or other disposal, or agreement for sale, transfer,
redemption, substitution, exchange, conversion or other disposal, of; |
(b) | any moneys or proceeds paid or payable (including interest and dividends) deriving from; |
(c) | any rights (including to securities), claims, guarantees, indemnities, security or covenants for title in relation to; |
(d) | any awards or judgments in favour of the Charged Property (as defined in the Charge over Shares) in relation to; |
(e) | any certificate or other evidence of title to; |
(f) | all other rights, powers, benefits and privileges, present and future, which the Chargor may have in respect of; and |
| (g) | any other assets or property deriving
from, the Charged Shares from time to time. |
[We
hereby notify you that additional _____________________ class ___ ordinary shares in the
Company represented by share certificate[s] number _____[and __________respectively] owned
by the Chargor shall become subject to the security interests created by the Charge over Shares.]
We request that you include the following
annotation in the Register of Members of the Company and provide the Investor with a certified copy of an extract of the annotated Register
of Members:
“The
__________________class ________ordinary shares issued
and registered in the name of GenTao Capital Limited represented by share certificate[s] number [and ] are charged in favour of Shining
Rich Holdings Limited 耀富控股有限公司
pursuant to a charge over shares dated [Date] 2024, as amended from time to time. The date that this annotation is made
is [Date].”
The terms of the Charge
over Shares contemplate that additional class ordinary shares
in the Company owned by the Chargor may become subject to the security interests created by the Charge over Shares. If any such event
occurs, we will issue a further notice to specifying the additional class ordinary shares in the Company owned by the Chargor which are
then subject to the security interests created by the Charge over Shares and request that an additional annotation is made in the Register
of Members.
We request that you, promptly and without
delay, take any action necessary in order to effect a transfer of the Charged Shares made pursuant to the terms of the Charge over Shares
following notice from the Investor including but not limited to passing any board resolutions and giving instructions to your Cayman Islands
registered office provider or your share registrar that maintains your register of members.
This notice is governed by the laws of Hong Kong.
Yours
faithfully,
Authorised Signatory
For and on behalf of
GenTao Capital Limited
SCHEDULE 5
INSTRUMENT OF TRANSFER
The undersigned, [shareholder name]
(the “Transferor”), does hereby transfer to Citi (Nominees) Limited (the “Transferee”) [number of shares] Class A
ordinary shares standing in my name in the undertaking called
VNET Group, Inc.
to hold the same unto the Transferee.
Signed by the Transferor:
In the presence of:
Witness to the above signature
Dated:
SCHEDULE 6
CONSENT AND DELIVERY INSTRUCTION – RESTRICTED
HOLDER
[●][●],
20[●]
Citibank, N.A. - ADR Department 388 Greenwich Street New
York, New York 10013
Attn:
Account Management
VNET Group, Inc.
(CUSIP # )*
Dear Sirs:
Reference is hereby made to (i) the Deposit
Agreement, dated as of April 20, 2011, as amended and supplemented from time to time (the “Deposit Agreement”), by
and among VNET Group, Inc. (the “Company”), Citibank, N.A., as Depositary (the “Depositary”), and all
Holders and Beneficial Owners of American Depositary Shares (the “ADSs”) issued thereunder, and (ii) the Amended
and Restated Restricted ADS Letter Agreement, dated as of January 26, 2021 (the “Amended and Restated Restricted ADS
Letter Agreement”), by and between the Company and the Depositary. Capitalized terms used but not defined herein shall have
the meanings given to them in the Deposit Agreement, or, in the event so noted herein, in the Amended and Restated Restricted ADS
Letter Agreement.
The undersigned holder
of Restricted Shares (as defined in the Amended and Restated Restricted ADS Letter Agreement) (the “Restricted Holder”)
hereby advises the Depositary and the Company of its intent to deposit, or to cause to be deposited on its behalf, the Designated Shares
specified in Schedule I hereto and the Company hereby consents to the issuance by the Depositary of the corresponding Designated
Restricted ADSs (as defined in the Amended and Restated Restricted ADS Letter Agreement).
Each of the Restricted
Holder and the Company hereby represents and warrants to the Depositary that (a) the Designated Shares (as defined in the Amended
and Restated Restricted ADS Letter Agreement) being deposited for the purpose of the issuance of Designated Restricted ADSs are validly
issued, fully paid and non-assessable, and free of any preemptive rights of the holders of outstanding Shares, (b) the deposit of
the specified Designated Shares and the issuance and delivery of Designated Restricted ADSs in respect thereof, in each case upon the
terms contemplated in the Amended and Restated Restricted ADS Letter Agreement, will not, as of the time of such deposit and issuance, require registration under
the Securities Act, (c) all approvals required by Cayman Islands law to permit the deposit of the specified Designated Shares under
the Deposit Agreement and the Amended and Restated Restricted ADS Letter Agreement have been obtained prior to the deposit of the specified
Designated Shares, (d) the Designated Shares are of the same class as, and rank pari passu with, the other Shares on deposit
under the Deposit Agreement, and (e) the specified Restricted Holder of the Designated Shares specified on Schedule I hereto
will be the Beneficial Owner of the corresponding Designated Restricted ADSs immediately following the deposit of the Designated Shares.
*
Please insert applicable CUSIP # prior to completion and delivery. General RADSs – CUSIP # 90138A 99 6 / Convertible
Bond RADSs – CUSIP # 90138A 88 9.
Each of the Restricted
Holder and the Company confirms that payment of the applicable fees, taxes and expenses payable under the terms of the Deposit Agreement
and the Amended and Restated Restricted ADS Letter Agreement upon the deposit of Shares and issuance of ADSs is being made to the Depositary
concurrently herewith.
Each of the Restricted
Holder and the Company has caused this Consent and Delivery Instruction to be executed and delivered on its behalf by their respective
officers thereunto duly authorized as of the date set forth above.
[RESTRICTED
HOLDER] |
|
|
|
By: |
|
|
Name: |
|
Title: |
|
|
|
Consented to: |
|
|
|
VNET Group, Inc. |
|
|
|
By: |
|
|
Name: |
|
Title: |
|
Schedule I
Designated Shares |
Designated Restricted ADSs |
of Designated Restricted ADSs |
Shares |
ADSs |
|
SCHEDULE 7
WITHDRAWAL CERTIFICATION
[●][●],
20[●]
Citibank, N.A. - ADR Department 388 Greenwich Street
New York, New
York 10013
Attn:
Account Management
Dear Sirs:
VNET Group, Inc. (CUSIP # )*
Reference is hereby made to (i) the Deposit
Agreement, dated as of April 20, 2011, as amended and supplemented from time to time (the “Deposit Agreement”),
by and among VNET Group, Inc. (the “Company”), Citibank, N.A., as Depositary (the “Depositary”),
and all Holders and Beneficial Owners of American Depositary Shares (the “ADSs”) issued thereunder, and (ii) the
Amended and Restated Restricted ADS Letter Agreement, dated as of January 26, 2021 (the “Amended and Restated Restricted
ADS Letter Agreement”), by and between the Company and the Depositary. Capitalized terms used but not defined herein shall have
the meanings given to them in the Deposit Agreement, or, in the event so noted herein, in the Amended and Restated Restricted ADS Letter
Agreement.
1. This
Withdrawal Certification is being furnished in connection with the withdrawal of Restricted Shares upon surrender of Restricted ADSs to
the Depositary.
2. We
acknowledge, or, if we are acting for the account of another person, such person has confirmed to us that it acknowledges, that the Restricted
ADSs and the Restricted Shares represented thereby have not been registered under the Securities Act.
3. We certify that either (check one):
(a) we
have sold or otherwise transferred, or agreed to sell or otherwise transfer and at or prior to the time of withdrawal will have sold or
otherwise transferred, the Restricted ADSs or the Restricted Shares represented thereby to persons other than US Persons (as defined in
Regulation S under the Securities Act) in an offshore transaction (as defined in Regulation S under the Securities Act) in accordance
with Rule 904 of Regulation S under the Securities Act [, provided that in connection with such transfer, we have
delivered or will deliver an opinion of U.S. counsel reasonably satisfactory to the Depositary and the Company to the effect that the
transfer is exempt from the registration requirements of the Securities Act], or
(b) we
have sold or otherwise transferred, or agreed to sell or otherwise transfer and at or prior to the time of withdrawal will have sold or
otherwise transferred, the Restricted ADSs or the Restricted Shares represented thereby in a transaction exempt from registration pursuant
to Rule 144 under the Securities Act[, provided that in connection with such transfer, we have delivered or will deliver
an opinion of U.S. counsel reasonably satisfactory to the Depositary and the Company to the effect that the transfer is exempt from the
registration requirements of the Securities Act], or
(c) we
will be the beneficial owner of the Restricted Shares upon withdrawal, and, accordingly, we agree that (x) we will not offer, sell,
pledge or otherwise transfer the Restricted Shares except (A) in a transaction exempt from registration pursuant to Rule 144
under the Securities Act, if available, (B) in an offshore transaction (as defined in Regulation S under the Securities Act) to persons
other than U.S. Persons (as defined in Regulation S under the Securities Act) in accordance with Rule 904 of Regulation S under the
Securities Act, (C) pursuant to any other available
exemption from the registration requirements of the Securities Act, or (D) pursuant to an effective registration statement under
the Securities Act, in each case in accordance with any applicable securities laws of the states of the United States, and (y) we
will not deposit or cause to be deposited such Restricted Shares into any depositary receipt facility established or maintained by a depositary
bank (including any such facility maintained by the Depositary), so long as such Restricted Shares are “Restricted Securities”
(within the meaning of given to such term in the Deposit Agreement).
*
Please insert applicable CUSIP # prior to completion and delivery. General RADSs – CUSIP # 90138A 99 6 / Convertible Bond
RADSs – CUSIP # 90138A 88 9.
The undersigned hereby instructs the Depositary
to cancel the Restricted ADSs specified below, to deliver the Shares represented thereby as specified below and, if applicable, to issue
to the undersigned a statement identifying the number of Restricted ADSs held by the undersigned and not cancelled pursuant to these instructions.
The undersigned appoints the Depositary and any of its authorized representatives as its attorney to take the actions contemplated above
on behalf of the undersigned. The undersigned confirms that applicable fees, taxes and expenses payable under the terms of the Deposit
Agreement and the Amended and Restated Restricted ADS Letter Agreement in connection the cancellation of Restricted ADSs and the withdrawal
of the corresponding Restricted Shares is being made to the Depositary concurrently herewith.
Name of Owner: |
|
|
|
Social Security Number or |
|
Taxpayer Identification Number
of Owner: |
|
|
|
Account Number of Owner: |
|
|
|
Number of Restricted ADSs to
be cancelled: |
|
|
|
Delivery Information for delivery
of Shares Represented by Restricted ADSs to be cancelled: |
|
|
|
Date: |
|
|
|
Signature of Owner: |
|
|
(Identify Title if Acting in
Representative Capacity) |
MEDALLION GUARANTEE
Medallion
Guarantee Stamp (Notary public seal is not acceptable)
Name of Firm Issuing Guarantee: |
|
Authorized Signature of Officer: |
|
Title of Officer Signing This Guarantee: |
|
Area Code and Telephone Number: |
|
The signature(s) above must be
guaranteed by an Eligible Guarantor Institution that is a member in good standing of a recognized Medallion Signature Guarantee Program
approved by The Securities Transfer Association, Inc.
The signature(s) must be stamped
with a Medallion Signature Guarantee by a qualified financial institution, such as a commercial bank, savings bank, savings and loan institutions,
U.S. stock broker and security dealer, or credit union, that is participating in an approved Medallion Signature Guarantee Program. A
NOTARY PUBLIC SEAL IS NOT ACCEPTABLE.
SCHEDULE 8
TRANSFER CERTIFICATION
[●][●],
20[●]
Citibank, N.A. - ADR Department
388 Greenwich Street
New York, New York 10013
Attn: Account Management
VNET Group, Inc.
(CUSIP # )*
Dear Sirs:
Reference is hereby
made to (i) the Deposit Agreement, dated as of April 20, 2011, as amended and supplemented from time to time (the “Deposit
Agreement”), by and among VNET Group, Inc., (the “Company”), Citibank, N.A., as Depositary (the “Depositary”),
and all Holders and Beneficial Owners of American Depositary Shares (the “ADSs”) issued thereunder, and (ii) the
Amended and Restated Restricted ADS Letter Agreement, dated as of January 26, 2021 (the “Amended and Restated Restricted
ADS Letter Agreement”), by and between the Company and the Depositary. Capitalized terms used but not defined herein shall have
the meanings given to them in the Deposit Agreement, or, in the event so noted herein, in the Amended and Restated Restricted ADS Letter
Agreement.
In connection with
the transfer of the Restricted ADSs surrendered herewith (the “Surrendered Restricted ADSs”) to the person(s) specified
in Schedule I hereto, the undersigned Holder certifies that:
(CHECK ONE)
¨ (a) The
Surrendered Restricted ADSs are being transferred to a person who the undersigned Holder reasonably believes is a “Qualified Institutional
Buyer” (within the meaning of Rule 144A under the Securities Act) for the account of a Qualified Institutional Buyer in a transaction
meeting the requirements of Rule 144A under the Securities Act and the transferee is acquiring the Surrendered Restricted ADSs for
investment purposes only without a view to distribution.
OR
¨ (b) The Surrendered
Restricted ADSs are being transferred to a person other than a U.S. Person (as defined in Regulation S under the Securities Act) in an
offshore transaction meeting the requirements of Regulation S under the Securities Act and the transferee is acquiring the Surrendered
Restricted ADSs for investment purposes without a view to distribution.
If neither of the
items above is checked, the Depositary shall not be obligated to register the Surrendered Restricted ADSs in the name of any person other
than the Holder thereof unless and until the conditions to any such transfer or registration set forth in the Deposit Agreement and the
Amended and Restated Restricted ADS Letter Agreement shall have been satisfied (including, without limitation, the delivery of an opinion
of U.S. securities counsel).
*
Please insert applicable CUSIP # prior to completion and delivery. General RADSs – CUSIP # 90138A 99 6 / Convertible Bond
RADSs – CUSIP # 90138A 88 9.
The transferor confirms
that applicable taxes and expenses payable in connection the transfer of ADSs under the terms of the Deposit Agreement and the Amended
and Restated Restricted ADS Letter Agreement is being made to the Depositary concurrently herewith.
The transferee has
and, if acting on behalf of the Beneficial Owner, such Beneficial Owner has agreed to take a Restricted ADSs identical to the Restricted
ADSs surrendered for transfer and subject to the same restrictions on transfer set forth in the Amended and Restated Restricted ADS Letter
Agreement.
MEDALLION GUARANTEE
Medallion
Guarantee Stamp (Notary public seal is not acceptable)
Name of Firm Issuing Guarantee: |
|
Authorized Signature of Officer: |
|
Title of Officer Signing This Guarantee: |
|
Area Code and Telephone Number: |
|
The signature(s) above must be guaranteed by an Eligible Guarantor Institution that is a member in good standing of a recognized Medallion
Signature Guarantee Program approved by The Securities Transfer Association, Inc.
The
signature(s) must be stamped with a Medallion Signature Guarantee by a qualified financial institution, such as a commercial bank, savings
bank, savings and loan institutions, U.S. stock broker and security dealer, or credit union, that is participating in an approved Medallion
Signature Guarantee Program. A NOTARY PUBLIC SEAL IS NOT ACCEPTABLE.
SCHEDULE 9
ISSUER CONSENT LETTER
VNET Group, Inc.
Guanjie Building Southeast 1st Floor
10# Jiuxianqiao
East Road
Chaoyang District, Beijing 100016
People’s Republic of China
[Date]
Securities Services Operations, Citibank Hong Kong
9/F Citi Tower
One Bay East
83 Hoi Bun Road
Kwun Tong, Kowloon, Hong Kong.
Citibank, N.A., as depositary 388 Greenwich Street
New York, NY10013
Attn: ADR Department
Ladies and Gentlemen:
VNET Group, Inc. (the
“Company”) hereby consents to the deposit into the ADR facility existing under the terms of the Deposit Agreement,
dated as of April 20, 2011 (the “Deposit Agreement”), by and among the Company, Citibank, N.A., as Depositary,
and the Holders and Beneficial Owners of American Depositary Shares issued thereunder, by the person(s) listed below of the Shares
set forth opposite their name (none of which are “Restricted Securities” within the meaning given to such term in the Deposit
Agreement).
VNET Group, Inc.
SCHEDULE 10
CONFIRMATION LETTER FOR SHARE TRANSFERS
VNET Group, Inc.
Guanjie Building Southeast 1st Floor
10# Jiuxianqiao
East Road
Chaoyang District, Beijing 100016
People’s Republic of China
To: | Maples Fund Services (Cayman) Limited c/o Maples Fund Services (Asia) Limited
16th Floor, Central Plaza, 18 Harbour Road, Wanchai, |
Hong Kong
Attn: Chris Liu/ Tim Lee/ Gary Lau
Date:
Dear Sirs,
VNET Group, Inc. (the “Company”)
Transfer of Class A
Ordinary Shares
I hereby confirm, on behalf of the board of directors
of the Company, that you are instructed to register the transfer of Class A ordinary shares of the Company from the transferor(s) listed
in Exhibit A attached hereto to the transferees listed in Exhibit A attached hereto, upon receipt of the relevant signed instruments
of transfer and without seeking further confirmation on the respective transfer.
The Company will issue new share certificates
accordingly. A copy of the executed share certificate will be provided for your records.
The use of this letter was approved by written
resolutions of the directors of the Company passed on 23 September 2011.
Yours faithfully,
Name:
Title: Director
For and on behalf of the Company
Exhibit A
Transferor(s) |
Transferee(s) |
Share Certificate
No. |
Number of Class A Ordinary Shares |
|
|
|
|
SCHEDULE 11
OFFICER’S CERTIFICATE
I, [●] of VNET Group, Inc., an exempted company with limited
liability incorporated under the laws of the Cayman Island (the “Company”), do hereby certify that:
(a) A
registration has been made in the share register in the name of Citi (Nominees) Limited for [●] Class A ordinary shares, which
shares are represented by Certificate No. [●] registered in the name of Citi (Nominees) Limited, as depositary (the“Depositary”).
(b) Attached
hereto as Exhibit A is a true, correct and complete specimen of the certificate representing Class A ordinary shares of the
Company duly authorized and validly issued in accordance with the constituent documents of the Company.
(c) The
Class A ordinary shares referred to above are being deposited in accordance with the Deposit Agreement, dated as of April 20,
2011 by and among the Company, the Depositary and all Holders and Beneficial Owners of American Depositary Shares issued thereunder.
(d) Attached
hereto as Exhibit B is a true and correct extract from Maples Fund Services (Asia) Limited showing the Depositary as a member of
the Company reflecting all Class A ordinary shares heretofore issued to the Depositary, and not otherwise cancelled by the Depositary,
including, without limitation, those Class A ordinary shares referred to in (a) above.
IN
WITNESS WHEREOF, I have duly executed and delivered this Officer’s Certificate dated of
, 20 .
VNET Group, Inc.
SCHEDULE 12
CONSENT AND DELIVERY INSTRUCTION - COMPANY
[●][●],
20[●]
Citibank, N.A. - ADR Department
388 Greenwich Street
New York, New York 10013
Attn: Account Management
VNET Group, Inc. (CUSIP # )*
Dear Sirs:
Reference is hereby made to
(i) the Deposit Agreement, dated as of April 20, 2011, as amended and supplemented from time to time (the
“Deposit Agreement”), by and among VNET Group, Inc. (the “Company”), Citibank, N.A., as
Depositary (the “Depositary”), and all Holders and Beneficial Owners of American Depositary Shares (the
“ADSs”) issued thereunder, and (ii) the Amended and Restated Restricted ADS Letter Agreement, dated as of
January 26, 2021 (the “Amended and Restated Restricted ADS Letter Agreement”), by and between the Company
and the Depositary. Capitalized terms used but not defined herein shall have the meanings given to them in the Deposit Agreement,
or, in the event so noted herein, in the Amended and Restated Restricted ADS Letter Agreement.
The Company hereby deposits
the Designated Shares specified in Schedule I hereto on behalf of the specified beneficial owners thereof and hereby consents to
the issuance by the Depositary of the corresponding Designated Restricted ADSs (as defined in the Amended and Restated Restricted ADS
Letter Agreement).
The Company hereby represents
and warrants to the Depositary that (a) the Designated Shares (as defined in the Amended and Restated Restricted ADS Letter Agreement)
being deposited for the purpose of the issuance of Designated Restricted ADSs are validly issued, fully paid and non-assessable, and free
of any preemptive rights of the holders of outstanding Shares, (b) the deposit of the specified Designated Shares and the issuance
and delivery of Designated Restricted ADSs in respect thereof, in each case upon the terms contemplated in the Amended and Restated Restricted
ADS Letter Agreement, will not, as of the time of such deposit and issuance, require registration under the Securities Act, (c) all
approvals required by Cayman Islands law to permit the deposit of the specified Designated Shares under the Deposit Agreement and the
Amended and Restated Restricted ADS Letter Agreement have been obtained prior to the deposit of the specified Designated Shares, (d) the
Designated Shares are of the same class as, and rank pari passu with, the other Shares on deposit under the Deposit Agreement,
and (e) the specified beneficial owners of the Designated Shares specified on Schedule I hereto will be the Beneficial Owners of
the corresponding Designated Restricted ADSs immediately following the deposit of the Designated Shares.
The Company confirms that payment
of the applicable fees, taxes and expenses payable under the terms of the Deposit Agreement and the Amended and Restated Restricted ADS
Letter Agreement upon the deposit of Shares and issuance of ADSs is being made to the Depositary concurrently herewith.
The Company has caused this
Consent and Delivery Instruction to be executed and delivered on its behalf by their respective officers thereunto duly authorized as
of the date set forth above.
*
Please insert applicable CUSIP # prior to completion and delivery. General RADSs – CUSIP # 90138A 99 6 / Convertible Bond
RADSs – CUSIP # 90138A 88 9.
|
VNET Group, Inc. |
|
|
|
By: |
|
Name: |
|
Title: |
Schedule I
Designated Shares |
Designated Restricted ADSs |
Name and Address of
Beneficial Owner of Designated
Restricted ADSs |
Shares |
ADSs |
|
The parties hereto have executed and delivered this Deed
the day and year first above written.
THE CHARGOR
EXECUTED
and DELIVERED
as a deed by CHEN SHENG
, its authorised director
for and on behalf of
GENTAO CAPITAL LIMITED |
)
)
)
)
)
)
) |
/s/ Chen
Sheng
Signature of director
Name: Chen Sheng |
|
[Execution Page – Share Charge (Issuer– Listco) –
Issuer]
THE INVESTOR
EXECUTED
and DELIVERED
as a deed by Wang
Peng
, its authorised signatory
for and on behalf of
SHINING RICH HOLDINGS
LIMITED
耀富控股有限公司 |
)
)
)
)
)
)
) |
/s/ Wang
Peng
Signature of authorised
signatory
Name: Wang
Peng |
|
[Execution Page – Share Charge (Issuer – Listco)
– Investor]
Exhibit 99.25
EXECUTION VERSION
Dated
5th day of July 2024 |
BEACON CAPITAL GROUP INC.
as Chargor
IN FAVOUR OF
SHINING RICH HOLDINGS LIMITED
耀富控股有限公司
as Investor |
CHARGE OVER SHARES |
THIS
DEED is made on the 5th day of July 2024
BY:
BEACON CAPITAL GROUP
INC., a BVI business company incorporated under the laws of the British Virgin Islands with limited liability with company number
469757 and with its registered office at Vistra Corporate Services Centre, Wickhams Cay II, Road Town, Tortola, VG1110, British Virgin
Islands (the “Chargor”)
IN FAVOUR OF:
SHINING
RICH HOLDINGS LIMITED 耀富控股有限公司, a BVI business company
incorporated under the laws of the British Virgin Islands with limited liability with company number 1972405 and with its registered
office at Portcullis Chambers, 4th Floor Ellen Skelton Building, 3076 Sir Francis Drake Highway, Road Town, Tortola, British Virgin
Islands VG1110 (the “Investor”).
(The parties referred above shall collectively
be referred to as the “Parties” and each a “Party”.)
NOW
THIS DEED WITNESSES as follows:
1. | DEFINITIONS AND INTERPRETATION |
Unless otherwise defined in this Deed
or unless the context otherwise requires, terms and expressions defined in or construed for the purposes of the Subscription Agreement
as amended from time to time shall bear the same meanings when used herein. In addition:
“Additional Ordinary Shares”
means:
| (b) | any Class A Shares and/or Class B Shares acquired by the Chargor in respect of Shares by reason of a stock split, stock dividends, stock
dividend paid or made in respect of Shares in the form of Class A Shares or Class B Shares (as the case may be), reclassification, conversion
or otherwise, including any Class A Shares converted from Shares in the form of Class B Shares in accordance with the memorandum and articles
of association of Listco and in accordance with the ADS Conversion Process (or otherwise); and |
| (c) | any Class A Shares released or returned by the Depositary (or its nominee) to the Chargor as a result of: |
| (i) | any Shares being unable to be deposited with the Depositary in accordance with the ADS Conversion Process for any reason; |
| (ii) | any ADSs previously issued in exchange for the deposit of such Shares being surrendered for the purpose of withdrawal of the Class A
Shares represented thereby (whether or not at the direction of the Investor). |
“ADS Conversion Process”
means the process comprising of the deposit of all or any part of the Class A Shares with the Depositary (or its nominee) in exchange
for the issuance by the Depositary of a corresponding number of ADSs representing the Class A Shares being exchanged.
“Issuer” means GenTao Capital
Limited, a BVI business company incorporated under the laws of the British Virgin Islands with limited liability with company number
1759132 and with its registered office at Vistra Corporate Services Centre, Wickhams Cay II, Road Town, Tortola, VG1110, British Virgin
Islands.
“BVI Act” means
the British Virgin Islands Business Companies Act 2004, as amended and/or supplemented from time to time.
“Certificated Shares”
means any and all of the Shares which are represented by a share certificate from time to time.
“Charged Property”
means: (a) the Share Collateral (and any part of them); (b) the Related Rights in relation to the Share Collateral; and (c) all
the assets and/or undertaking (including but not limited to the Share Collateral and all Related Rights in relation thereto) of the Chargor
which from time to time are the subject of the security created or expressed to be created in favour of the Investor by or pursuant to
this Deed.
“Collateral Rights”
means all rights, powers and remedies of the Investor provided by or pursuant to this Deed or by law.
“Companies Act”
means the Companies Act (As Revised) of the Cayman Islands.
“Companies Ordinance”
means the Companies Ordinance (Cap. 622 of the laws of Hong Kong).
“Event of Default”
has the meaning given to the term “Event of Default” under the Note Instrument.
“Further Shares”
means all Class A Shares and Class B Shares held by the Chargor which are required under paragraph (b) of clause 15.21
(Conditions Subsequent) or any other provisions of the Subscription Agreement to become subject to the Security conferred or intended
to be conferred on the Investor by or pursuant to this Deed in form and substance satisfactory to the Investor.
“Initial Class A Shares”
means the 34,744,206 Class A Shares owned by the Chargor, represented by share certificate number OA-283.
“Listco”
means VNET Group, Inc. ( 世纪互联集团), an exempted company incorporated in the
Cayman Islands with limited liability whose class A ordinary shares (in the form of ADSs) are traded under the ticker symbol
“VNET” on NASDAQ Global Select Market.
“Receiver” means
a receiver or receiver and manager or an administrative receiver of the whole or any part of the Charged Property and that term will include
any appointee under a joint and/or several appointment.
“Register of Members”
means the Register of Members of the Listco (including any applicable branch register and non-listed shares register) maintained by the
Listco in accordance with the Companies Act.
“Related Rights”
means, in relation to any Charged Property:
| (a) | any proceeds of sale, transfer, redemption, substitution, exchange, conversion or other disposal, or agreement for sale, transfer,
redemption, substitution, exchange, conversion or other disposal, of; |
| (b) | any moneys or proceeds paid or payable (including interest and dividends) deriving from; |
| (c) | any rights (including to securities), claims, guarantees, indemnities, security or covenants for title in relation to; |
| (d) | any certificate or other evidence of title to; |
| (e) | all other rights, powers, benefits and privileges, present and future, which the Chargor may have in respect of; and/or |
| (f) | any other assets or property deriving from, |
the Shares from time to time, including
(A) any ADSs issued in exchange for the deposit of Shares with the Depositary (or its nominee) in accordance with clause 15.21 (Conditions
Subsequent) of the Subscription Agreement and the ADS Conversion Process and (B) all other securities, assets or rights which
the Chargor may have to any or all of the Shares which are deposited with or registered in the name of the Depositary or any other depositary,
custodian, nominee, clearing house or system, investment manager, chargee or other similar person or their nominee, in each case whether
or not on a fungible basis (including any rights against any such person).
“Secured Obligations”
means all obligations at any time due, owing or incurred by the Obligors, to the Investor under the Transaction Documents (or any of them)
(as amended, restated, supplemented and/or novated from time to time), whether present or future, actual or contingent (and whether incurred
solely or jointly and whether as principal or surety or in some other capacity).
“Security
Period” means the period from and including the date of execution of this Deed to and including the date of discharge of the
security created by this Deed in accordance with Clause 19 (Release of Security).
“Share Registrar”
means Maples Fund Services (Asia) Limited and any successor share registrar for Listco acceptable to the Investor.
“Shares” means:
| (a) | the Initial Class A Shares; and |
| (b) | the Additional Ordinary Shares. |
“Share Collateral”
means all present and future Shares beneficially owned by the Chargor, and/or any substitute or additional Shares thereof from time to
time, while any Secured Obligations are outstanding.
“Subscription
Agreement” means the subscription agreement dated_______________2024 entered into between (among others) the Issuer as issuer and the
Investor as investor, pursuant to which, the Issuer agrees to issue to the Investor, and the Investor agrees to subscribe from the
Issuer, the Note (as supplemented, modified or amended from time to time).
“Triggering
Event” has the meaning given to it in Clause 7.1.1.
In this Deed:
| 1.2.1 | the rules of construction set out in clause 1.2 of the Subscription Agreement shall apply to this Deed mutatis mutandis; |
| 1.2.2 | references in this Deed to any Clause or Schedule shall be to a clause or schedule contained in this Deed; and |
| 1.2.3 | any reference to the Chargor and the Investor shall be construed so as to include its or their (and any subsequent) successors and
any permitted assigns and transferees in accordance with their respective interests. |
The Chargor hereby covenants with the
Investor that it shall on demand pay and discharge each of the Secured Obligations on their due date as provided for in the Transaction
Documents.
| (a) | All the security created under this Deed: |
| (i) | is created in favour of the Investor; |
| (ii) | is created over present and future assets of the Chargor; |
| (iii) | is created by the Chargor as the beneficial owner of the Charged Property; and |
| (iv) | is continuing security for the payment, discharge and performance of all the Secured Obligations. |
| (b) | If the rights of the Chargor under a document cannot be the subject of this Security without the consent of a party to that document: |
| (i) | the Chargor must notify the Investor promptly; |
| (ii) | this Security will secure all amounts which the Chargor may receive, or has received, under that document or in respect of that other
asset, but exclude the document or that other asset itself; and |
| (iii) | unless the Investor otherwise requires, the Chargor must use reasonable endeavours to obtain the consent of the relevant party to
that document being the subject of this Security. |
| (a) | The Chargor hereby charges as beneficial owner in favour of the Investor, as security for the payment and discharge of the Secured
Obligations, by way of first fixed charge, all the Chargor’s right, title and interest from time to time in and to the Share Collateral
and all its other present and future Related Rights in relation thereto. |
| (b) | The Chargor hereby authorises the Investor to arrange at any time following the occurrence of an Event of Default which is continuing
for the Charged Property or any part thereof to be registered in the name of the Investor (or its nominee) thereupon to be held, as so
registered, subject to the terms of this Deed and at the request of the Investor, the Chargor shall without delay procure that the foregoing
shall be done. |
3.3 | Creation of floating charge |
The
Chargor charges as beneficial owner to the Investor by way of first floating charge and as a continuing security for the payment and discharge
of the Secured Obligations all of the Charged Property, other than any Charged Property validly and effectively charged or assigned (whether
at law or in equity) pursuant to Clause 3.2 (Fixed Charge).
3.4 | Conversion of floating charge |
Notwithstanding
anything express or implied in this Deed, the Investor may at any time after the occurrence of an Event of Default, by giving notice
in writing to that effect to the Chargor convert the floating charge created by Clause 3.3 (Creation of floating
charge) into a fixed charge as regards any assets specified in such notice. The conversion shall take effect immediately upon
the giving of the notice.
Notwithstanding anything express or
implied in this Deed, and without prejudice to any law which may have similar effect, if:
| (i) | the Chargor creates or attempts to create any security over all or any of the Charged Property without the prior consent of the Investor
or save as expressly permitted under any Transaction Document; or |
| (ii) | any person levies or attempts to levy any distress, sequestration, execution or other process against, or appoints a receiver over,
any of the Charged Property; or |
| (iii) | if any steps are taken, including the presentation of a petition and the making of an application for the liquidation, insolvency
or administration of the Chargor or if a provisional liquidator or liquidator is appointed; or |
| (iv) | in any other circumstances prescribed by law, |
then
the floating charge created by Clause 3.3 (Creation of floating charge) will automatically (without notice) be converted
into a fixed charge as regards all of the assets subject to the floating charge.
The
giving of a notice by the Investor pursuant to Clause 3.4(a) (Conversion by notice) in relation to any Charged Property
shall not be construed as a waiver or abandonment of the rights of the Investor to serve similar notices in respect of any other class
of assets or any other right of the Investor.
| 4.1.1 | The Chargor shall promptly after execution of this Deed (or, in respect of any Additional Ordinary Shares acquired after the date
of this Deed, promptly after such Additional Ordinary Shares become subject to the Security conferred or intended to be conferred on the
Investor by or pursuant to this Deed) procure that the following notation to be entered on the Register of Members provided that such
notation shall be completed to reflect the details of the relevant Shares: |
“The
[¨] class [¨] ordinary
shares issued and registered in the name of Beacon Capital Group Inc. represented by share certificate[s] number [¨]
[and [¨]] are charged in favour of Shining Rich Holdings Limited 耀富控股有限公司 pursuant
to a charge over shares dated [Date] 2024, as amended from time to time. The date that this annotation is made is
[Date].”
| 4.1.2 | The Chargor shall provide the Investor with a certified true copy of an extract of the Register of Members with the annotation referred
to in Clause 4.1.1 within five (5) Business Days of the date of this Deed (or, in respect of any Additional Ordinary Shares acquired
after the date of this Deed, within five (5) Business Days of the date on which such Additional Ordinary Shares become subject to
the Security conferred or intended to be conferred on the Investor by or pursuant to this Deed). |
| 4.1.3 | The Chargor represents and warrants that, on the date of this Deed, it is not registered as a non-Hong Kong company under Part 16
of the Companies Ordinance nor has it made any application to be so registered. |
| 4.1.4 | If at any time after the date of this Deed, the Chargor applies to have itself registered as a non-Hong Kong company under Part 16
of the Companies Ordinance, it shall promptly notify the Investor in writing. Without prejudice to the foregoing, upon its being registered
as a non-Hong Kong company under Part 16 of the Companies Ordinance, the Chargor shall promptly: |
| (a) | notify the Investor and provide it with the details of such registration; and |
| (b) | (and in any case within one month after the date of such registration) take all necessary steps to comply with the requirements under
section 340 of the Companies Ordinance in respect of this Deed and the security created hereby. |
| 4.1.5 | Registration of Security in the BVI |
| (a) | The Chargor is required by section 162 of the BVI Act to establish and maintain a register of charges (“Register of Charges”)
and details of the Security created by this Deed shall be entered in the Register of Charges kept at the Chargor’s registered office
or at the office of the registered agent of the Chargor. The Chargor shall, within five (5) Business Days of the execution of this
Deed and in compliance with the BVI Act, enter the details of the Security created by this Deed in the Register of Charges maintained
at the Chargor’s registered office. The Chargor shall, within five (5) Business Days of the execution of this Deed, deliver
to the Investor a copy of the Register of Charges duly certified by a director of the Chargor. |
| (b) | The Chargor shall, or shall assist the Investor to, contemporaneously with the execution of this Deed, register with the Registrar
of Corporate Affairs in the British Virgin Islands details of the Security created by this Deed in the Register of Registered Charges
maintained at the Registrar pursuant to section 163 of the BVI Act. |
| (c) | If the registration referred to in paragraph (b) of this Clause 4.1.5 is not being effected by or on behalf of the Investor,
the Chargor shall, promptly on receipt, and in any event, within fifteen (15) Business Days from the date of this Deed, deliver to the
Investor a true copy of the Certificate of Registration of Charge in relation to the registration of this Deed duly certified by a director
of the Chargor. |
4.2 | [Intentionally deleted] |
4.3 | Delivery of Documents of Title |
The Chargor shall:
| 4.3.1 | on the date of this Deed, deposit with the Investor (or procure the deposit with the Investor of) an acknowledgment from each person
(if any) holding any Shares existing as at the date of this Deed as its nominee, substantially in the form set out in Schedule 2 (Form of
Acknowledgment from Nominee); |
| 4.3.2 | procure that, where any nominee holding any Shares or Related Rights ceases to be or act as such, the successor nominee (or, if more
than one, each successor nominee)) shall forthwith execute and deliver to the Investor an acknowledgment in respect of such Shares or
Related Rights in substantially the form set out in Schedule 2 (Form of Acknowledgment from Nominee) or in such other form
as the Investor may reasonably request; |
| 4.3.3 | on the date of this Deed, deposit with the Investor (or procure the deposit with the Investor of) the following in respect of any
Initial Class A Shares existing as at the date of this Deed: |
| (a) | all share certificates (if any) or other documents of title; |
| (b) | an instrument of transfer in the form set out in Schedule 1 (Form of Instrument of Transfer) which has been duly executed
by the Chargor as transferor in blank (with the date, the name of the transferee and the number of shares left blank); |
| (c) | an irrevocable proxy and irrevocable power of attorney made in respect of the Share Collateral in the form set out in Schedule 3 (Form of
Irrevocable Appointment of Proxy and Power of Attorney) which has been duly executed by the Chargor in blank (with the date and the
number of shares left blank); and |
| (d) | a notice of charge from the Chargor to the Listco in the form set out in Schedule 4 (Form of Notice of Charge) which has
been duly executed by the Chargor, |
the documents set out in paragraphs (a) to (d) above
together, the “Security Deliverables”;
| 4.3.4 | deposit with the Investor (or procure the deposit with the Investor of) such documents as the Investor deems necessary or desirable
for the ADS Conversion Process in form and substance satisfactory to the Investor (collectively, the “ADS Conversion Documents”): |
| (a) | on the date of this Deed, all documents for the ADS Conversion Process in the form set out in Schedule 5 to Schedule 12 which have
been duly executed by the Chargor or the Listco (as the case may be); and |
| (b) | such further ADS Conversion Documents as the Investor deems necessary or desirable in accordance with clause 15.21 (Conditions
Subsequent) of the Subscription Agreement, |
| 4.3.5 | in respect of the Additional Ordinary Shares, the Chargor shall, deliver (or procured there to be delivered) to the Investor the following documents in form and substance satisfactory to the Investor, (i) in the case of any Additional Ordinary Shares that are Further Shares, on or prior to the date on which such Additional Ordinary Shares are required to be furnished as Security pursuant to paragraph (b) of clause 15.21 (Conditions Subsequent) or any other provisions of the Subscription Agreement (or, in respect of the ADS Conversion Documents only, if later, the date on which any documents in respect of such Additional Ordinary Shares are required to be delivered under paragraph (d) of clause 15.21 (Conditions Subsequent) of the Subscription Agreement); and (ii) in the case of other Additional Ordinary Shares, on the date on which such Additional Ordinary Shares become so subject to the Security conferred or intended to be conferred on the Investor by or pursuant to this Deed (or, in respect of the ADS Conversion Documents only, if later, the date on which any documents in respect of such Additional Ordinary Shares are required to be delivered under paragraph (d) of clause 15.21 (Conditions Subsequent) of the Subscription Agreement):
|
| (a) | a certified true copy of an extract of the Register of Members showing the Chargor as the registered owner of the Additional Ordinary
Shares; |
| (b) | original valid and duly issued share certificates or other documents of title representing such Additional Ordinary Shares; and |
| (c) | all Security Deliverables in respect of such Additional Ordinary Shares (each of which has been duly executed by the Chargor in the
manner set out in Clause 4.3.3) in form and substance satisfactory to the Investor; |
| (d) | all ADS Conversion Documents; |
| 4.3.6 | on the date of any removal or resignation of any director of the Chargor who executed any Security Deliverables or any documents deposited
with the Investor pursuant to Clauses 4.3.3, 4.3.4 or 4.3.5 in respect of any Shares during the
Security Period, the Chargor shall promptly deliver or cause to be delivered to the Investor a replacement of all such items (each having
been duly executed by a continuing or replacement director of the Chargor (in the case of any Security Deliverables) in the manner set
out in Clause 4.3.3 and (in other cases) in form and substance satisfactory to the Investor) and a certified copy of the register
of directors of the Chargor maintained by the Chargor in accordance with the BVI Act in form and substance satisfactory to the Investor; |
| 4.3.7 | if at any time during the Security Period, the Investor determines that the form of any Security Deliverable or any documents deposited
with the Investor pursuant to Clause 4.3.4 or 4.3.5(d) has been amended, updated or replaced by Listco, the Depositary, the Share
Registrar and/or the registered office provider of Listco rendering such item or document delivered incapable of being used to effect
the ADS Conversion Process, the Chargor shall promptly on demand by the Investor, deliver to the Investor a copy of the amended, updated
or replaced form of such item or document (each having been duly executed by the Chargor (in the case of any Security Deliverables) in
the manner set out in Clause 4.3.3) in form and substance satisfactory to the Investor; |
| 4.3.8 | the Investor shall be entitled to hold all documents and instruments delivered to it pursuant to this Clause 4.3 until the end of
the Security Period, and the Chargor hereby irrevocably and unconditionally authorises (and, with respect to paragraph 4.3.8 of this Clause
4.3.8, requests and authorises) the Investor to (and the Investor shall be entitled to), at any time after the occurrence of an Event
of Default which is continuing, complete, date and put into effect, under its power of attorney given in this Deed or otherwise, such
documents and instruments to effect a transfer of all or any Shares in favour of itself or such other person as it shall direct; and |
| 4.3.9 | any document or instrument required to be delivered to the Investor pursuant to this Clause 4.3 which is for any reason not so delivered
or which is released by the Investor to the Chargor shall be held on trust by the Chargor for the Investor. |
5.1 | Further Assurance: General |
The Chargor shall promptly at its own
cost do all such acts and/or execute all such documents (including without limitation assignments, transfers, mortgages, charges, notices
and instructions) as the Investor may reasonably specify (and in such form as the Investor may reasonably require in favour of the Investor
or its nominee(s)):
| 5.1.1 | to create, perfect, protect or preserve the security created or intended to be created in respect of the Charged Property (which may
include, without limitation, the re-execution of this Deed, the execution by the Chargor of a mortgage, charge or assignment over all
or any of the assets constituting, or intended to constitute, any part of the Charged Property) or for the exercise of the Collateral
Rights, and the giving of any notice, order or direction and the making of any filing or registration, or for the exercise of the Collateral
Rights; and/or |
| 5.1.2 | after the occurrence of a Triggering Event, to facilitate the realisation and/or enforcement of the assets constituting, or intended
to constitute, the Charged Property (including to execute and complete in favour of the Investor, Listco, the Share Registrar, the registered
office provider of Listco, the Depositary (or the nominee of any of the foregoing) or any purchaser any document and to give any instruction
which the Investor may reasonably require to effect any step of the ADS Conversion Process or otherwise vest any of the Charged Property
in the Investor, any Receiver or any other transferee or purchaser). |
The Chargor shall from time to time
take all such action (whether or not requested to do so by the Investor) as is or shall be reasonably available to it (including without
limitation obtaining and/or effecting all approvals) as may be necessary for the purpose of the creation, perfection, protection or maintenance
of any security conferred or intended to be conferred on the Investor by or pursuant to this Deed.
The Chargor shall promptly deliver
to the Investor all information that is available to it and that is required in order for the Investor to comply with any applicable laws
or regulations in respect of any Charged Property (including without limitation section 329 of the Securities and Futures Ordinance (Cap.
571 of the Laws of Hong Kong), or any similar provision in any articles of association or constitutional documents relating to any Charged
Property.
5.4 | Implied Covenants for Title |
The obligations of the Chargor under
this Deed shall be in addition to any covenants for title deemed to be included in this Deed under applicable law.
6. | RESTRICTIONS ON DEALINGS |
The Chargor undertakes that it shall
not, at any time during the subsistence of this Deed, create or permit to subsist any Security over all or any part of the Charged Property
unless expressly permitted under and in accordance with any of the Transaction Documents.
6.2 | No Disposal of Interests |
The Chargor undertakes that, during
the subsistence of this Deed, it shall not, and shall not agree to:
| (a) | sell, assign, transfer or otherwise dispose of any Charged Property; |
| (b) | procure or permit Listco to issue any new shares; |
| (c) | appoint any new director, or otherwise effect any change of director, of the Listco; or |
| (d) | otherwise procure or permit a change of control over Listco or any Charged Property, |
except (a) as otherwise permitted
under clauses 15.5 and 15.22 of the Subscription Agreement or the provisions hereof; or (b) with the prior written consent of the
Investor.
7. | OPERATIONS BEFORE AND AFTER TRIGGERING EVENT |
| 7.1.1 | The Chargor shall, at all times prior to the giving of a notice in writing by the Investor to the Chargor (a “Triggering
Event”) that an Event of Default has occurred, ensure that all dividends paid or made in respect of any Charged Property are
applied in accordance with the terms of the Subscription Agreement. |
| 7.1.2 | After the occurrence of a Triggering Event, the Chargor shall promptly pay over and deliver to the Investor for application in accordance
with this Deed (and the Investor may apply in accordance with this Deed) any and all dividends, distributions, interest and/or other monies
received and/or recovered by it in respect of all or any part of the Charged Property. |
| 7.1.3 | Any and all dividends, distributions, interest and/or other monies received, recovered or paid/delivered to the order of the Chargor
(other than in cash) in respect of any or all of the Charged Property shall be held by the Chargor subject to the security constituted
by this Deed, provided that if such receipt or recovery is made after the occurrence of a Triggering Event, the Chargor shall promptly
deliver such dividends, distributions, interest and/or other monies to the Investor for application in accordance with this Deed. |
7.2 | Operation: Before Triggering Event |
Prior to the occurrence of a Triggering
Event, the Chargor shall be entitled to exercise all voting rights in relation to any or all of the Share Collateral provided that the
Chargor shall not exercise such voting rights in any manner that could give rise to, or otherwise permit or agree to, any (a) variation
of the rights attaching to or conferred by any of the Share Collateral or (b) any liability on the part of the Investor.
7.3 | Operation: After Triggering Event |
The Investor may, upon and/or after
the occurrence of a Triggering Event, at its discretion (in the name of the Chargor or otherwise and without any further consent or authority
from the Chargor):
| 7.3.1 | exercise (or refrain from exercising) any voting rights in respect of the Charged Property; |
| 7.3.2 | apply all dividends, distributions, interest and other monies arising from all or any of the Charged Property in accordance with Clause
13 (Application of Monies); |
| 7.3.3 | have the right to complete, date and put into effect any documents referred to in Clause 4.3 of this Deed or transfer all or any of
the Charged Property into the name of such nominee(s) of the Investor as it shall think fit; and |
| 7.3.4 | cause the conversion or dematerialisation of any of the Charged Property into scripless securities and the deposit of such scripless
securities into any account (whether in the name of the Investor or otherwise); and |
| 7.3.5 | exercise (or refrain from exercising) the powers and rights conferred on or exercisable by the legal or beneficial owner of the Charged
Property, including without limitation the right, in relation to any company, corporation or entity whose shares, equity interests or
other securities are included in the Charged Property or any part thereof, to concur or participate in: |
| (a) | the reconstruction, amalgamation, sale or other disposal of such company, corporation or entity or any of its assets or undertaking
(including without limitation the exchange, conversion or reissue of any shares, equity interests or securities as a consequence thereof); |
| (b) | the release, modification or variation of any rights or liabilities attaching to such shares, equity interests or securities; and |
| (c) | the exercise, renunciation or assignment of any right to subscribe for any shares, equity interests or securities, |
in
each case in such manner and on such terms as the Investor may think fit, and the proceeds of any such action shall form part of the Charged
Property and may be applied by the Investor in accordance with Clause 13 (Application of Monies).
The Chargor shall pay when due all
calls or other payments which may be or become due in respect of any of the Charged Property, and in any case of default by the Chargor
in such payment, the Investor may, if it thinks fit, make such payment on behalf of the Chargor in which case any sums paid by the Investor
shall be reimbursed by the Chargor to the Investor on demand.
| 7.5.1 | The Chargor shall not exercise any of its rights and powers in relation to any of the Charged Property in any manner which, in the
opinion of the Investor, would prejudice the value of, or the ability of the Investor to realise, the security created by this Deed. |
| 7.5.2 | The Investor shall not have any duty to ensure that any dividends, interest or other monies and assets receivable in respect of the
Charged Property are duly and punctually paid, received or collected as and when the same become due and payable or to ensure that the
correct amounts (if any) are paid or received on or in respect of the Charged Property or to ensure the taking up of any (or any offer
of any) stocks, shares, rights, monies or other property paid, distributed, accruing or offered at any time by way of redemption bonus,
rights, preference, or otherwise on or in respect of, any of the Charged Property. |
| 7.5.3 | The Chargor shall not at any time during the Security Period exercise the right to nominate any person other than the Investor or
the nominee of the Investor to enjoy or exercise any right relating to any of the Charged Property. |
8. | [INTENTIONALLY DELETED] |
9. | ENFORCEMENT OF SECURITY |
Upon and after the occurrence of a
Triggering Event or if the Chargor requests the Investor to exercise any of its powers under this Deed, the security created by or pursuant
to this Deed is immediately enforceable and the Investor may, with prior notice to the Chargor or prior authorisation from any court,
in its absolute discretion:
| 9.1.1 | assume control of, and to have it or its nominee registered as holder of legal title to, any Charged Property; |
| 9.1.2 | sell, exchange, grant options over, or otherwise dispose of, any Charged Property by any method, at any time and on any terms, it
thinks fit or to postpone doing of any of these things; |
| 9.1.3 | complete, date and deliver any document delivered to it under this Deed; |
| 9.1.4 | borrow or raise money either unsecured or on the security of the Charged Property (either in priority to the Security conferred or
intended to be conferred on the Investor by or pursuant to this Deed or otherwise); |
| 9.1.5 | settle, adjust, refer to arbitration, compromise and arrange any claims, accounts, disputes, questions and demands relating to the
Charged Property; |
| 9.1.6 | bring, prosecute, enforce, defend and abandon actions, suits and proceedings in relation to the Charged Property or any business of
the Chargor; |
| 9.1.7 | redeem any Security (whether or not having priority to the Security conferred or intended to be conferred on the Investor by or pursuant
to this Deed) over the Charged Property and to settle the accounts of any person with an interest in the Charged Property; |
| 9.1.8 | exercise and do (or permit the Chargor or any nominee of the Chargor to exercise and do) all such rights and things as the Investor
would be capable of exercising or doing if it were the absolute beneficial owner
of the Charged Property; |
| 9.1.9 | enforce all or any part of such security (at the times, in the manner and on the terms it thinks fit) and take possession of and hold
or dispose of all or any part of the Charged Property; and |
| 9.1.10 | whether or not it has appointed a Receiver, exercise all or any of the powers, authorities and discretions conferred by this Deed
on any Receiver or otherwise conferred by law on mortgagees and/or Receivers. |
9.2 | No Liability as Mortgagee in Possession |
Neither the Investor nor any Receiver
shall be liable to account as a mortgagee in possession in respect of all or any part of the Charged Property or be liable for any loss
upon realisation or for any neglect, default or omission in connection with the Charged Property to which a mortgagee or a mortgagee in
possession might otherwise be liable, unless in each case, directly caused by its wilful misconduct.
The
power of sale or other disposal conferred on the Investor and on any Receiver by this Deed shall arise (and the Secured Obligations shall
be deemed due and payable for that purpose) on execution of this Deed and shall be exercisable in accordance with Clause 9.1 (Enforcement)
and any applicable law or regulation.
Any restrictions imposed by law on
the power of sale or on the consolidation of security (including without limitation any restriction under paragraph 11 of the Fourth Schedule
to the Conveyancing and Property Ordinance (Cap. 219) of the Laws of Hong Kong) shall be excluded to the fullest extent permitted by law.
11. | APPOINTMENT OF RECEIVER |
11.1 | Appointment and Removal |
Upon and after the occurrence of a
Triggering Event or if requested to do so by the Chargor, the Investor may by deed or otherwise (acting through an authorised officer
of the Investor), without prior notice to the Chargor:
| 11.1.1 | appoint one or more persons to be a Receiver over the whole or any part of the Charged Property; |
| 11.1.2 | appoint two or more Receivers of separate parts of the Charged Property; |
| 11.1.3 | remove (so far as it is lawfully able) any Receiver so appointed; and/or |
| 11.1.4 | appoint another person(s) as an additional or replacement Receiver(s). |
11.2 | Capacity of Receivers |
Each
person appointed to be a Receiver pursuant to Clause 11.1 (Appointment and Removal) shall be:
| 11.2.1 | entitled to act individually or together with any other person appointed or substituted as Receiver; |
| 11.2.2 | for all purposes deemed to be the agent of the Chargor which shall be solely responsible for his acts, defaults and liabilities and
for the payment of his remuneration and no Receiver shall at any time act as agent for the Investor; and |
| 11.2.3 | entitled to remuneration for his services at a rate to be fixed by the Investor from time to time. |
If at any time there is more than one
Receiver, each Receiver may separately exercise all of the powers conferred by this Deed and to the exclusion of any other Receiver (unless
the document appointing such Receiver states otherwise).
11.4 | Statutory Powers of Appointment |
The powers of appointment of a Receiver
herein contained shall be in addition to all statutory and other powers of appointment of the Investor under applicable law and such powers
shall remain exercisable from time to time by the Investor in respect of all or any part of the Charged Property.
Every Receiver shall (subject to any
restrictions in the instrument appointing him but notwithstanding any winding-up or dissolution of the Chargor) have and be entitled to
exercise, in relation to the Charged Property (and any assets of the Chargor which, when got in, would be Charged Property) or that part
thereof in respect of which he was appointed, and as varied and extended by the provisions of this Deed (in the name of or on behalf of
the Chargor or in his own name and, in each case, at the cost of the Chargor):
| 12.1.1 | all the powers conferred by the Conveyancing and Property Ordinance (Cap. 219) of the Laws of Hong Kong on mortgagors
and on mortgagees in possession and on receivers appointed under that Ordinance (as if the Charged Property constituted property that
is subject to that Ordinance and as if such Receiver were appointed under that Ordinance), free from any limitation under paragraph 11
of the Fourth Schedule to that Ordinance; |
| 12.1.2 | all the powers and rights of an absolute owner and power to do or omit to do anything which the Chargor itself could do or omit to
do; and |
| 12.1.3 | the power to do all things (including without limitation bringing or defending proceedings in the name or on behalf of the Chargor)
which seem to that Receiver to be incidental or conducive to (a) any of the functions, powers, authorities or discretions conferred
on or vested in him or (b) the exercise of any Collateral Rights (including without limitation realisation of all or any part of
the Charged Property) or (c) bringing to his hands any assets of the Chargor forming, or which, when got in, would be part of the
Charged Property. |
12.2 | Additional Powers of Receiver |
In
addition to and without prejudice to the generality of the foregoing, every Receiver shall (subject to any limitations or restrictions
expressed in the instrument appointing him but notwithstanding any winding-up or dissolution of the Chargor) have the following powers
in relation to the Charged Property (and any assets of the Chargor which, when got in, would be part of the Charged Property) in respect
of which he was appointed (and every reference in this Clause 12.2 to the “Charged Property” shall be read as
a reference to that part of the Charged Property in respect of which such Receiver was appointed):
power to enter upon, take immediate
possession of, collect and get in the Charged Property including without limitation dividends and other income whether accrued before
or after the date of his appointment;
| 12.2.2 | Proceedings and Claims |
power to bring, prosecute, enforce,
defend and abandon applications, claims, disputes, actions, suits and proceedings in connection with all or any part of the Charged Property
or this Deed in the name of the Chargor or in his own name and to submit to arbitration, negotiate, compromise and settle any such applications,
claims, disputes, actions, suits or proceedings;
power to carry on and manage, or concur
in the carrying on and management of or to appoint a manager of, the whole or any part of the Charged Property or any business relating
thereto in such manner as he shall in his absolute discretion think fit;
| 12.2.4 | Deal with Charged Property |
power, in relation to the Charged Property
and each and every part thereof, to sell, transfer, convey, dispose of or concur in any of the foregoing by the Chargor or any other receiver
or manager of the Chargor (including without limitation to or in relation to the Investor) in such manner and generally on such terms
as he thinks fit;
power to purchase, lease, hire or otherwise
acquire any assets or rights of any description which he shall in his absolute discretion consider necessary or desirable for the carrying
on, improvement or realisation of the whole or any part of the Charged Property or otherwise for the benefit of the whole or any part
of the Charged Property;
power to promote, procure the formation
or otherwise acquire the share capital of, any body corporate with a view to such body corporate becoming a subsidiary of the Chargor
or otherwise and purchasing, leasing or otherwise acquiring an interest in the whole or any part of the Charged Property or carrying on
any business in succession to the Chargor or any subsidiary of the Chargor;
power to effect, maintain or renew
indemnity and other insurances and to obtain bonds and performance guarantees;
power to raise or borrow money from
the Investor or any other person to rank either in priority to the security constituted by this Deed or any part of it or otherwise and
with or without a mortgage or charge on the Charged Property or any part of it on such terms as he shall in his absolute discretion think
fit (and no person lending such money shall be concerned to see or enquire as to the propriety or purpose of the exercise of such power
or the application of money so raised or borrowed);
| 12.2.9 | Redemption of Security |
power to redeem, discharge or compromise
any security whether or not having priority to the security constituted by this Deed or any part of it;
| 12.2.10 | Covenants, Guarantees and Indemnities |
power to enter into bonds, covenants,
guarantees, commitments, indemnities and other obligations or liabilities as he shall think fit, to make all payments needed to effect,
maintain or satisfy such obligations or liabilities and to use the company seal of the Chargor; and
| 12.2.11 | Exercise of Powers in Chargor’s Name |
power to exercise any or all of the
above powers on behalf of and in the name of the Chargor (notwithstanding any winding-up or dissolution of the Chargor) or on his own
behalf.
In
making any sale or other disposal of all or any part of the Charged Property or any acquisition in the exercise of their respective powers
(including without limitation a disposal by a Receiver to any subsidiary of the Chargor or other body corporate as is referred to in Clause
12.2.6), a Receiver or the Investor may accept or dispose of as, and by way of consideration for, such sale or other disposal or
acquisition, cash, shares, loan capital or other obligations, including without limitation consideration fluctuating according to or dependent
upon profit or turnover and consideration the amount whereof is to be determined by a third party. Any such consideration may, if thought
expedient by the Receiver or the Investor, be nil or may be payable or receivable in a lump sum or by instalments. Any contract for any
such sale, disposal or acquisition by the Receiver or the Investor may contain conditions excluding or restricting the personal liability
of the Receiver or the Investor.
12.4 | Relationship with Investor |
To the fullest extent allowed by law,
any right, power or discretion conferred by this Deed (either expressly or impliedly) or by law on a Receiver may after the Security conferred
or intended to be conferred on the Investor by or pursuant to this Deed becomes enforceable be exercised by the Investor in relation to
any Charged Property without first appointing a Receiver and notwithstanding the appointment of a Receiver.
Save
as otherwise expressly provided in this Deed, all moneys and/or non-cash recoveries and/or proceeds received or recovered by the Investor
or any Receiver pursuant to this Deed or the powers conferred by it shall (subject to the claims of any person having prior rights thereto
and subject to Clause 13.2 (Suspense Account)) be applied:
| 13.1.1 | first, in the payment of the costs, charges and expenses incurred and payments made by any Receiver, the payment of his remuneration
and the discharge of any liabilities incurred by such Receiver in, or incidental to, the exercise of any of his powers; |
| 13.1.2 | second, be applied by the Investor as the Investor shall think fit in discharge of the Secured Obligations; and |
| 13.1.3 | third, following such payments, the remaining balance (if any) shall be paid to the Chargor for its rights and interests or such other
person as may be entitled thereto. |
All monies received, recovered or
realised under this Deed by the Investor or any Receiver or the powers conferred by it (including the proceeds of any conversion of currency)
may in its discretion be credited to and held in any suspense or impersonal account pending their application from time to time in
or towards the discharge of any of the Secured Obligations in accordance with Clause 13.1 (Order of Application).
13.3 | Application by Chargor |
Any
application under this Clause 13 shall override any application by the Chargor.
14. | RECEIPT AND PROTECTION OF PURCHASERS |
14.1 | Receipt and Consideration |
The receipt of the Investor or any
Receiver shall be conclusive discharge to a purchaser of any part of the Charged Property from the Investor or such Receiver and in making
any sale or disposal of any part of the Charged Property or making any acquisition, the Investor or any Receiver may do so for such consideration,
in such manner and on such terms as it thinks fit.
14.2 | Protection of Purchasers |
No purchaser or other person dealing
with the Investor or any Receiver shall be bound to inquire whether the right of the Investor or such Receiver to exercise any of its
powers has arisen or become exercisable or be concerned with any propriety or regularity on the part of the Investor or such Receiver
in such dealings. No person (including a purchaser) dealing with the Investor or a Receiver or its or his agents will be obliged or concerned
to enquire:
| (a) | whether the Secured Obligations have become payable; |
| (b) | whether any power which the Investor or a Receiver is purporting to exercise has become exercisable or is being properly exercised; |
| (c) | whether any money remains due under the Transaction Documents; or |
| (d) | how any money paid to the Investor or to that Receiver is to be applied. |
The protection given to purchasers
from a mortgagee in sections 52 and 55 of the Conveyancing and Property Ordinance (Cap. 219) of the Laws of Hong Kong shall apply mutatis
mutandis to purchaser(s) and other person(s) dealing with the Investor or any Receiver.
15.1 | Appointment and Powers |
The Chargor by way of security irrevocably
(within the meaning of Section 4 of the Powers of Attorney Ordinance (Cap. 31) of the Laws of Hong Kong) appoints the Investor and
any Receiver severally to be its attorney and in its name, on its behalf to execute, deliver and perfect all documents and do all things
which the Investor or such Receiver may consider to be necessary for:
| 15.1.1 | carrying out any obligation imposed on the Chargor by this Deed or any other agreement binding on the Chargor to which the Investor
is party (including without limitation the execution and delivery of any deeds, charges, assignments or other security and any transfers
of the Charged Property or any part thereof); and |
| 15.1.2 | enabling the Investor and any Receiver to exercise, or delegate the exercise of, any of the rights, powers and authorities conferred
on them by or pursuant to this Deed or by law (including, without limitation, upon or after the occurrence of a Triggering Event, the
exercise of any right of a legal or beneficial owner of the Charged Property or any part thereof). |
The Chargor shall ratify and confirm
all things done and all documents executed by any attorney in the lawful exercise or purported exercise of all or any of his powers pursuant
to this Deed.
The Chargor represents and warrants
to the Investor that:
| 16.1.1 | it is a company with limited liability, duly incorporated, validly existing and in good standing under the laws of the British Virgin
Islands; |
| 16.1.2 | subject to Legal Reservations, each of the obligations expressed to be assumed by it in this Deed are legal, valid, binding and enforceable
obligation, and this Deed creates the security interests which it purports to create and such security interests are valid and effective; |
| 16.1.3 | the entry into and performance by it of, and the transactions contemplated by, this Deed do not and will not: |
| (a) | conflict with any law or regulation applicable to it; |
| (b) | conflict with its constitutional documents; |
| (c) | conflict with any agreement or instrument binding upon it or any of its assets; or |
| (d) | result in the existence of or oblige it to create any security over all or any of its assets (other than the security constituted
pursuant to this Deed); |
| 16.1.4 | it has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and
delivery of, this Deed; |
| 16.1.5 | no limit on its powers will be exceeded as a result of the grant of security contemplated by this Deed; |
| 16.1.6 | all Approvals required or desirable: |
| (a) | to enable it lawfully to enter into, exercise its rights and comply with its obligations in this Deed; |
| (b) | to make this Deed admissible in evidence in its jurisdiction of incorporation and/or Hong Kong; and/or |
| (c) | to enable it to create the security expressed to be created by it pursuant to this Deed and to ensure that such security has the priority
and ranking it is expressed to have, |
have been obtained or effected and are in full force and
effect;
| 16.1.7 | subject to Legal Reservations, the choice of the laws of Hong Kong as the governing law of this Deed will be recognised and enforced
in its jurisdiction of incorporation and in the courts of Hong Kong; |
| 16.1.8 | subject to Legal Reservations, any judgment obtained in the courts of Hong Kong in relation to this Deed will be recognised and enforced
in its jurisdiction of incorporation and/or Hong Kong; |
| 16.1.9 | save and except for those as set out in Clause 4, under the law of its jurisdiction of incorporation it is not necessary that this
Deed be filed, recorded or enrolled with any court or other authority in that jurisdiction or that any stamp, registration or similar
tax be paid on or in relation to this Deed; |
| 16.1.10 | all consents necessary to enable any asset that is expressed to be subject to any security under this Deed to be the subject of effective
security under this Deed have been obtained and are in full force and effect; |
| 16.1.11 | it is, and will be, the sole beneficial owner of the Charged Property free from security (other than the security constituted pursuant
to this Deed) and this Deed creates in favour of the Investor first ranking Security Interest over the Charged Property; |
| 16.1.12 | it has not sold or otherwise disposed of, or created, granted or permitted to subsist any security over, all or any of its right,
title and interest in the Charged Property (other than the security constituted pursuant to this Deed and other than as expressly permitted
under this Deed); |
| 16.1.13 | the Share Collateral have been validly issued and allotted by the Listco and are fully paid up and there are no monies or liabilities
payable or outstanding by the Chargor in relation to any of the Shares; |
| 16.1.14 | it is solvent and: |
| (a) | no petition has been presented, no order has been made, or resolution passed for the winding up of the Chargor or for the appointment
of a liquidator or provisional liquidator to the Chargor; |
| (b) | no administrator has been appointed in relation to the Chargor and to the best information and knowledge of the Chargor, no notice
has been given or filed with the court of an intention to appoint an administrator and no petition or application has been presented or
order has been made for the appointment of an administrator in respect of the Chargor; |
| (c) | no receiver or administrative receiver or manager has been appointed, to the best information and knowledge of the Chargor, no notice
has been given of the appointment of any such person, over the whole or part of the business or assets of the Chargor; |
| (d) | the Chargor has not proposed or agreed to a composition, compromise, assignment or arrangement with any of its creditors; and |
| (e) | to the best information and knowledge of the Chargor, the Chargor is not subject to or threatened by any other procedures or steps
which are analogous to those set out above. |
| 16.1.15 | no Event of Default is continuing or might reasonably be expected to result from the entry into, the performance of, or any transaction
contemplated by this Deed; |
| 16.1.16 | to the best of the knowledge and information of the Chargor, no other event or circumstance is outstanding which constitutes (or,
with the expiry of a grace period, the giving of notice, the making of any determination or any combination of any of the foregoing, would
constitute) a default or termination event (however described) under any other agreement or instrument which is binding on it or to which
its assets are subject; and |
| 16.1.17 | to the best information and knowledge of the Chargor, no litigation, arbitration, investigation or administrative proceedings of or
before any court, arbitral body or agency been started or threatened, or is pending, against it or its assets which may have a Material
Adverse Effect. |
Each of the representations and warranties
above shall be deemed to be repeated by the Chargor on each day of the Security Period by reference to the facts and circumstances existing
at the date on which such representation or warranty is deemed to be made or repeated.
| 17.1 | The Chargor shall not and shall procure that there shall not be any sale, transfer or disposal of any Shares or Charged Property or
any interest therein, without the prior written consent of the Investor. |
| 17.2 | The Chargor hereby covenants during the Security Period it will remain the legal and the beneficial owner of the Charged Property
(subject only to the security created by this Deed) and that it shall not: |
| 17.2.1 | create or permit to subsist any security (other than that created by this Deed) on or in respect of the whole of any part of the Charged
Property or any of its interest therein; or |
| 17.2.2 | sell, lease, assign, lend, dispose of, transfer or otherwise deal with any of its interest in the Charged Property (other than pursuant
to this Deed) and in any such case, without the prior written consent of the Investor; or |
| 17.2.3 | do, or permit to be done, any act or thing that would or might depreciate, jeopardise or otherwise prejudice the security held by
the Investor, or diminish the value of any of the Charged Property or the effectiveness of the security created by this Deed. The Chargor
shall, promptly on becoming aware, notify the Investor in writing of any representation or warranty set out in Clause 16.1 of this Deed
which is incorrect or misleading in any material respect when made or deemed to be repeated and any breach of any covenant set out in
this Deed. |
17.3 | The Chargor shall deliver to the Investor as soon as reasonably practicable immediately upon receipt by the Chargor copies of all
notices of general meetings, proposed shareholder resolutions of the Listco, financial statements and all other materials distributed
to, or requiring action by, shareholders of the Listco from time to time and all other materials and information distributed by the Listco
to, or requiring action by, the shareholders of the Listco and such other information concerning the Listco (that the Chargor as a shareholder
of the Listco would have known) as the Investor shall from time to time request. |
17.4 | The Chargor shall remain liable to perform all the obligations assumed by it in relation to the Charged Property and the Investor
shall be under no obligation of any kind whatsoever in respect thereof or be under any liability whatsoever in the event of any failure
by the Chargor to perform its obligations in respect thereof. |
17.5 | The Chargor shall not take, or allow the taking of, any action on its behalf which may result in the rights attaching to, or conferred
by, all or any of the Charged Property being altered. |
17.6 | The Chargor shall not waive, release, settle, compromise, abandon or set-off any claim or the liability of any person in respect of
the Related Rights, or do or omit to do any other act or thing whereby the recovery in full of the Related Rights as and when they become
payable may be impeded. |
18. | EFFECTIVENESS OF SECURITY |
The security created by or
pursuant to this Deed shall remain in full force and effect as a continuing security for the Secured Obligations unless and until
discharged by the Investor. No part of the security from time to time intended to be constituted by this Deed will be considered
satisfied or discharged by any intermediate payment, discharge or satisfaction of the whole or any part of the Secured
Obligations.
The security created by this Deed and
the Collateral Rights shall be cumulative, in addition to and independent of every other security which the Investor may at any time hold
for any or all of the Secured Obligations or any rights, powers and remedies provided by law. No prior security held by the Investor over
the whole or any part of the Charged Property shall merge into the security constituted by this Deed.
18.3 | Chargor’s Obligations |
None
of the obligations of the Chargor under this Deed or the Collateral Rights shall be affected by an act, omission, matter, thing or event
which, but for this Clause 18.3, would reduce, release or prejudice any of its obligations under this Deed including (without limitation
and whether or not known to it or the Investor):
| 18.3.1 | the winding-up, dissolution, administration, reorganisation, death, insolvency, incapacity or bankruptcy of the Chargor or any other
person or any change in its status, function, control or ownership; |
| 18.3.2 | any of the obligations of the Chargor or any other person under any Transaction Document being or becoming illegal, invalid, unenforceable
or ineffective in any respect; |
| 18.3.3 | any time, waiver or consent granted to, or composition with, the Chargor or any other person; |
| 18.3.4 | the release of the Chargor or any other person under the terms of any composition or arrangement with any creditor of the Chargor
or any other person; |
| 18.3.5 | the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights
against, or security over assets of, the Chargor or other person or any non-presentation or non-observance of any formality or other requirement
in respect of any instrument or any failure to realise the full value of any security; |
| 18.3.6 | any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of the Chargor
or any other person; |
| 18.3.7 | any amendment, novation, supplement, extension (whether of maturity or otherwise) or restatement (in each case however fundamental
and of whatsoever nature, and whether or not more onerous) or replacement of a Transaction Document or any other document or security
or of the Secured Obligations; |
| 18.3.8 | any unenforceability, illegality or invalidity of any obligation of any person under any Transaction Document or any other document
or security; |
| 18.3.9 | any insolvency or similar proceedings; |
| 18.3.10 | any claims or set-off right that the Chargor may have; or |
| 18.3.11 | any law, regulation or decree or order of any jurisdiction affecting the Chargor. |
Without
prejudice to the generality of Clause 18.3(Chargor’s Obligations), the Chargor expressly confirms that it intends
that the security created under this Deed, and the Collateral Rights, shall extend from time to time to any (however fundamental and of
whatsoever nature, and whether or not more onerous) variation, increase, extension or addition of or to any of the Transaction Documents
or any other security relating to any Transaction Document.
| (a) | No failure on the part of the Investor to exercise, or any delay on its part in exercising, any Collateral Right shall operate as
a waiver thereof, nor shall any single or partial exercise of any Collateral Right preclude any further or other exercise of that or any
other Collateral Right. |
| (b) | No election by the Investor or any Receiver to affirm this Deed or to waive any Collateral Rights shall be effective unless it is
in writing. |
| (c) | The Collateral Rights are cumulative and not exclusive of the rights of the Investor or any Receiver under the general law. No single
or partial exercise of any Collateral Right shall preclude any further or other exercise of that or any other Collateral Right. |
The Chargor waives any right it may
have of first requiring the Investor (or any trustee or agent on its behalf) to proceed against or enforce any other right or security
or claim payment from any person or file any proof or claim in any insolvency, administration, winding-up or liquidation proceedings relative
to any other person before claiming from the Chargor under this Deed.
None of the Investor, its nominee(s) or
any Receiver shall be liable by reason of (a) taking any action permitted by this Deed or (b) any neglect or default in connection
with all or any part of the Charged Property or (c) taking possession of or realising all or any part of the Charged Property, except
in the case of wilful default upon its part (as finally judicially determined).
If, at any time, any provision of
this Deed is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality,
validity or enforceability of the remaining provisions of this Deed under such laws nor of such provision under the laws of any
other jurisdiction shall in any way be affected or impaired thereby and, if any part of the security intended to be created by or
pursuant to this Deed is invalid, unenforceable or ineffective for any reason, that shall not affect or impair any other part of
that security.
The Investor shall not be obliged to
make any demand of or enforce any rights or claim against the Chargor or any other person, to take any action or obtain judgment in any
court against the Chargor or any other person or to make or file any proof or claim in a liquidation, bankruptcy or insolvency of the
Chargor or any other person or to enforce or seek to enforce any other security in respect of any or all of the Secured Obligations before
exercising any Collateral Right.
Until the time when (i) all Secured
Obligations have been irrevocably discharged in full and (ii) all amounts which may be or become payable by the Chargor and the Chargor
under or in connection with the Transaction Documents have been irrevocably paid in full, the Chargor will not (unless the Investor otherwise
directs) exercise any rights which it may have by reason of performance by it of its obligations under this Deed:
| 18.10.1 | to be indemnified by the Chargor; |
| 18.10.2 | to claim any contribution from any guarantor (if any) of the Chargor’s obligations under any or all of the Transaction Documents;
and/or |
| 18.10.3 | to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Investor under the Transaction
Documents or of any other guarantee or security taken pursuant to, or in connection with, the Transaction Documents by the Investor. |
18.11 | Settlement conditional |
Any settlement, discharge or release
hereunder in relation to the Chargor or all or any part of the Charged Property shall be conditional upon no security or payment by the
Chargor to the Investor being avoided or reduced by virtue of any bankruptcy, insolvency, liquidation or similar laws of general application
or any similar event or for any other reason and shall in the event of any such avoidance or reduction or similar event be void and the
liability of the Chargor under this Deed and the Security created by this Deed shall continue as if such payment, settlement, discharge
or release had not occurred.
19.1 | Redemption of Security |
Upon the time when (i) all
Secured Obligations have been irrevocably discharged in full, and (ii) all amounts which may be or become payable by the
Chargor under or in connection with the Transaction Documents have been irrevocably paid in full, the Investor
shall, at the request (with reasonable notice) and cost of the Chargor, as soon as reasonably practicable, release and cancel the
security constituted by this Deed on the relevant Share Collateral or any balance paid by the Chargor under Clause 3.2 (Fixed
Charge) and procure the reassignment to the Chargor of the property and assets assigned to the Investor and the return to the
Chargor of the certificates and documents delivered to the Investor pursuant to this Deed (to the extent not otherwise sold,
assigned or otherwise disposed of or applied in accordance with this Deed), in each case subject to Clauses 19.2 (Avoidance of
Payments) and 18.11 (Settlement conditional) and without recourse to, or any representation or warranty by, the Investor
or any of its nominees.
19.2 | Avoidance of Payments |
If the Investor reasonably considers
that any amount paid or credited to or recovered by the Investor from the Chargor is capable of being avoided or reduced by virtue of
any bankruptcy, insolvency, liquidation or similar laws, the liability of the Chargor under this Deed and the security constituted by
this Deed shall continue and such amount shall not be considered to have been irrevocably paid.
20. | SUBSEQUENT AND PRIOR SECURITY INTERESTS |
20.1 | Subsequent security interests |
If the Investor (acting in its capacity
as chargee or otherwise) at any time receives or is deemed to have received notice of any subsequent security or other interest affecting
all or any part of the Charged Property or any assignment or transfer of the Charged Property which is prohibited by the terms of this
Deed or the Transaction Documents, all payments thereafter by or on behalf of the Chargor to the Investor shall be treated as having been
credited to a new account of the Investor and not as having been applied in reduction of the Secured Obligations as at the time when (or
at any time after) the Investor received such notice of such subsequent security or other interest or such assignment or transfer.
20.2 | Prior security interests |
In the event of any action, proceeding
or step being taken to exercise any powers or remedies conferred by any prior ranking security or upon the exercise by the Investor or
any Receiver of any power of sale under this Deed or any Collateral Right, the Investor may redeem any prior ranking security over or
affecting any Charged Property or procure the transfer of any such prior ranking security to itself. The Investor may settle and agree
the accounts of the beneficiary of any such prior security and any accounts so settled and agreed will be conclusive and binding on the
Chargor. All principal, interest, costs, charges, expenses and/or other amounts relating to and/or incidental to any such redemption or
transfer shall be paid by the Chargor to the Investor upon demand.
21. | CURRENCY CONVERSION AND INDEMNITY |
For the purpose of or pending the discharge
of any of the Secured Obligations the Investor may convert any money received, recovered or realised or subject to application by it under
this Deed from one currency to another, as the Investor may think fit, and any such conversion shall be effected at the Investor’s
spot rate of exchange (or, if no such spot rate of exchange is quoted by the Investor, such other rate of exchange as may be available
to the Investor) for the time being for obtaining such other currency with such first-mentioned currency.
If any sum (a “Sum”)
owing by the Chargor under this Deed or any order or judgment given or made in relation to this Deed has to be converted from the currency
(the “First Currency”) in which such Sum is payable into another currency (the “Second Currency”)
for the purpose of:
| 21.2.1 | making or filing a claim or proof against the Chargor; |
| 21.2.2 | obtaining an order or judgment in any court or other tribunal; |
| 21.2.3 | enforcing any order or judgment given or made in relation to this Deed; or |
| 21.2.4 | applying the Sum in satisfaction of any of the Secured Obligations, |
the Chargor shall indemnify the Investor
from and against any loss suffered or incurred as a result of any discrepancy between (a) the rate of exchange used for such purpose
to convert such Sum from the First Currency into the Second Currency and (b) the rate or rates of exchange available to the Investor
at the time of such receipt or recovery of such Sum.
22. | COSTS, EXPENSES AND INDEMNITY |
The Chargor shall, on demand of the
Investor, reimburse the Investor on a full indemnity basis for all costs and expenses (including legal fees and any value added tax) incurred
by the Investor in connection with (a) the execution of this Deed or otherwise in relation to this Deed, including but not limited
to costs and expenses relating to any amendment of this Deed, (b) the perfection or enforcement of the security constituted by this
Deed, (c) the exercise of any Collateral Right, together with interest from the date such costs and expenses were incurred to the
date of reimbursement of the same by the Chargor, and/or (d) the release of the security constituted by this Deed.
The Chargor shall pay all stamp, registration
and other Taxation to which this Deed, the security contemplated in this Deed and/or any judgment given in connection with this Deed is,
or at any time may be, subject and shall, from time to time, indemnify the Investor on demand against any liabilities, costs, claims and/or
expenses resulting from any failure to pay or delay in paying any such Tax.
The Chargor shall, notwithstanding
any release or discharge of all or any part of the security constituted by this Deed, indemnify the Investor, its agents, attorneys and
any Receiver against any action, proceeding, claims, losses, liabilities and costs which it may sustain as a consequence of any breach
by the Chargor of the provisions of this Deed, the exercise or purported exercise of any of the rights and powers conferred on any of
them by this Deed or otherwise relating to the Charged Property or any part thereof.
23. | PAYMENTS FREE OF DEDUCTION |
All payments to be made to the Investor
under this Deed shall be made free and clear of and without deduction for or on account of any Taxation unless the Chargor is required
to make such payment subject to the deduction or withholding of any Taxation, in which case the sum payable by the Chargor in respect
of which such deduction or withholding is required to be made shall be increased to the extent necessary to ensure that, after the making
of such deduction or withholding, the person on account of whose liability to tax such deduction or withholding has been made receives
and retains (free from any liability in respect of any such deduction or withholding) a net sum equal to the sum which it would have received
and so retained had no such deduction or withholding been made or required to be made.
23.2 | No set-off or counterclaim |
All payments to be made by the Chargor
under this Deed shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.
24. | DISCRETION AND DELEGATION |
Any liberty or power which may be exercised
or any determination which may be made under this Deed by the Investor or any Receiver may, subject to the applicable terms and conditions
of, as the case may be, the Transaction Documents, be exercised or made in its absolute and unfettered discretion without any obligation
to give reasons.
Each
of the Investor and any Receiver shall have full power to delegate (either generally or specifically) the powers, authorities and discretions
conferred on it by this Deed (including without limitation the power of attorney under Clause 15 (Power of Attorney)) on
such terms and conditions as it shall see fit which delegation shall not preclude any subsequent exercise, any subsequent delegation or
any revocation of such power, authority or discretion by the Investor or any Receiver.
In acting as Investor and chargee,
the Investor shall have the benefit of all indemnities, protections and rights on its part set out in the Transaction Documents, as if
set out fully herein
The Investor may set off any matured
obligation due from the Chargor under any or all of the Transaction Documents (to the extent beneficially owned by the Investor) against
any matured obligation owed by the Investor to the Chargor, regardless of the place of payment, booking branch or currency of either obligation.
If such obligations are in different currencies, the Investor may convert either obligation at a market rate of exchange in its usual
course of business for the purpose of such set-off.
This Deed shall be binding upon and
enure to the benefit of each party hereto and its and/or any subsequent successors and permitted assigns and transferees. Without prejudice
to the foregoing, this Deed shall remain in effect despite any amalgamation or merger (however effected) relating to the Investor; and
references to the Investor herein shall be deemed to include any person who, under the laws of its jurisdiction of incorporation or domicile,
has assumed the rights and obligations of the Investor under this Deed or to which, under such laws, those rights and obligations have
been transferred.
26.2 | No Assignment or Transfer by Chargor |
The Chargor may not assign or transfer
any or all of its rights (if any) and/or obligations under this Deed.
26.3 | Assignment or Transfer by Investor |
The Investor may assign or transfer
any or all of its rights (if any) and/or obligations under this Deed.
The Investor shall be entitled to disclose
such information concerning the Chargor or any other person and this Deed as the Investor considers appropriate to any actual or proposed
direct or indirect successor or to any person to whom information may be required to be disclosed by applicable law.
27. | AMENDMENTS AND WAIVERS |
27.1 | Any provision of this Deed may be amended or waived only by agreement in writing between the Chargor and the Investor. No third party’s
signature is required for any amendment. |
27.2 | No failure on the part of the Investor to exercise, or delay on its part in exercising, any or all of its rights hereunder shall operate
as a waiver thereof or constitute an election to affirm this Deed. No election to affirm this Deed on the part of the Investor shall be
effective unless it is in writing. No single or partial exercise of any such right or remedy shall preclude any further or other exercise
of such or any other right or remedy. |
28.1 | Any notice, claim or demand in connection with this Deed shall be in writing, in English language, and marked “IMPORTANT LEGAL
NOTICE” (each a “Notice”), and shall be delivered or sent to the recipient at its/his email address, or address
(where applicable) listed below, or any other email address or address notified to the sender by the recipient for the purposes of this
Instrument: |
To the Chargor: |
Beacon Capital Group Inc.
Address: 10 Jiuxianqiao East Road, Chaoyang
District, Beijing 100016
Email:
Josh.Chen@vnet.com
Attention: Cheng Sheng |
|
|
To the Investor: |
Shining Rich Holdings Limited 耀富控股有限公司
Email:
workforpapper@163.com
Attention: Fang Li / Tong Lin |
28.2 | If any Investor that is a natural Person dies, until the Party giving a Notice has received notice in writing of the grant of probate
of his will or letters of administration of his estate (or equivalent), any Notice so given shall be as effectual as if he was still living. |
28.3 | Without prejudice to Clause 28.2, any Notice shall be deemed to have been served: (a) if served by hand, when delivered and proof
of delivery is obtained by the delivery party, (b) if served by overnight courier, on the next Business Day, or (c) if sent
by email, only when received in legible form by at least one of the relevant email addresses of the person(s) to whom the communication
is made. Any Notice received on a Sunday or public holiday shall be deemed to be received on the next Business Day. |
This Deed may be executed in any number of counterparts,
all of which taken together shall constitute one and the same instrument.
30.1 | A Person who is not a Party has no right under the Contracts (Rights of Third Parties) Ordinance (Chapter 623 of the laws of Hong
Kong) to enforce or to enjoy the benefit of any term of this Deed. |
30.2 | Notwithstanding any term of this Deed, the consent of any person who is not a Party is not required to rescind or vary this Deed at
any time. |
This Deed shall be governed by and shall be construed in
accordance with Hong Kong law.
32.1 | With respect to any dispute, controversy or claim arising out of or relating to this Deed, including the existence, validity, performance,
interpretation, construction, breach or termination thereof or the consequences of its nullity (each a “Dispute”),
the Parties hereby irrevocably submit to the exclusive jurisdiction of the Hong Kong courts. |
32.2 | The parties hereto agree that the courts of Hong Kong are the most appropriate and convenient courts to settle Disputes between them
and, accordingly, that they will not argue to the contrary. |
32.3 | This Clause 32 is for the benefit of the Investor only. As a result and notwithstanding Clause 32.2, nothing herein shall prevent
the Investor from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law the Investor
may take concurrent proceedings in any number of jurisdictions. |
32.4 | The Chargor hereby waives with respect of this Deed any right to claim sovereign immunity from jurisdiction or execution or any similar
defence, and irrevocably consents to the giving of any relief or the issue of any process, including, without limitation, the making,
enforcement or execution against any property whatsoever (irrespective of its use or intended use) of any order of judgment made or given
in connection with any proceedings arising out of or in connection with this Deed. |
33.1 | Without prejudice to any other mode of service allowed under any relevant law, the Chargor irrevocably appoints VNET Group Limited
of 37/F., Tower 1 Metroplaza, Hing Fong Road, Kwai Fong, Hong Kong as its agent under this Deed for service of process in any proceedings
before the Hong Kong courts in connection with this Deed. |
33.2 | If any person appointed as process agent under this Clause is unable for any reason to so act, the Chargor must immediately (and in
any event within five (5) days of the event taking place) appoint another agent on terms acceptable to the Investor. Failing this,
the Investor may appoint another process agent for this purpose. |
33.3 | The Chargor agrees that failure by a process agent to notify it of any process will not invalidate the relevant proceedings. |
33.4 | This Clause does not affect any other method of service allowed by law. |
SCHEDULE 1
FORM OF INSTRUMENT OF TRANSFER
Instrument of transfer
The undersigned, Beacon Capital Group Inc. (the “Transferor”)
does hereby transfer to:
(the “Transferee”),
_____________Class _____________ordinary
shares standing in our name in the undertaking called
VNET
Group, Inc. (世纪互联集团)
to hold the same unto the Transferee. Signed by the Transferor:
For and on behalf of
Beacon Capital Group Inc.
Name:
Title:
Date:
Signed by the Transferee:
For and on behalf of
[Name of Transferee]
Name:
Title:
Date:
SCHEDULE 2
FORM OF ACKNOWLEDGMENT FROM NOMINEE
To: | Shining Rich Holdings Limited 耀富控股有限公司
(the “Investor”, which expression shall include its successors, assigns and transferees) |
Copy to: Beacon Capital Group Inc. of [address]
Dear Sirs,
At the request of Beacon Capital Group Inc., I/we hereby:
1. | warrant and confirm that I am/we are the registered holder(s) of [insert number and description of relevant Shares] in
VNET Group, Inc. (世纪互联集团)
(the “Shares”) and am/are holding the Shares as nominee for and on behalf of the Chargor; |
2. | acknowledge that the Chargor has, pursuant to a deed of Charge over Shares (as amended and/or supplemented from time to time, the
“Deed”) dated_________________ 2024 by the Chargor
in favour of the Investor, charged and/or granted security over the Shares in favour of you as security upon the terms and conditions
specified therein; |
3. | undertake that [I]/[we] shall, upon and at all times after the earlier of being requested by you to do so or the enforcement of the
security constituted by the Deed in respect of the Shares, hold the Shares on trust for you (or any other person whom you may nominate); |
4. | undertake that [I]/[we] shall, upon being requested by you to do so, transfer the legal title in the Shares to you (or any other person
whom you may nominate) and do all acts and execute all documents as may be necessary and/or as you may require for such purpose; and |
5. | irrevocably and unconditionally appoint each of you and any Receiver (as defined in the Deed) severally to be [my]/[our] attorney
on the terms of Clause 15 (Power of Attorney) of the Deed (applying mutatis mutandis) as if [I was]/[we were] the Chargor,
and undertake to execute such further powers of attorney in such form as you may reasonably require from time to time. |
This acknowledgment is governed by and shall be construed
in accordance with the laws of Hong Kong.
Dated:
IN WITNESS WHEREOF this deed has been executed the day and
year above written.
[in the case where the relevant nominee is incorporated
in Hong Kong or a company incorporated outside Hong Kong which has a company seal]
THE COMMON SEAL of
[name of nominee]
was hereunto affixed in the presence of: |
)
)
) |
[Director][Authorised Signatory]
OR
[in the case where the relevant nominee is a company
incorporated outside of Hong Kong and does not have any company seal]
SIGNED, SEALED and DELIVERED |
) |
as a DEED by |
) |
[name of relevant authorised signatory] |
) |
for and on behalf of |
) |
[name of relevant nominee] |
) |
in the presence of |
) |
Signature of witness: |
|
Name of witness: |
|
Title: |
|
Address of witness: |
|
|
|
|
|
Occupation of witness: |
|
OR
[in the case where the relevant nominee is an individual]
SIGNED, SEALED and DELIVERED |
) |
as a DEED by |
) |
[name of relevant nominee] |
) |
in the presence of |
) |
Signature of witness: |
|
Name of witness: |
|
Title: |
|
Address of witness: |
|
|
|
|
|
Occupation of witness: |
|
SCHEDULE 3
FORM OF IRREVOCABLE APPOINTMENT OF PROXY
AND POWER OF ATTORNEY
VNET
Group, Inc. (世纪互联集团)
We,
Beacon Capital Group Inc., hereby irrevocably appoint Shining Rich Holdings Limited 耀富控股有限公司
and its successors, permitted transferees and permitted assigns as our:
| 1. | proxy
to vote at meetings of the members of VNET Group, Inc. (世纪互联集团)
(the “Company”) in respect of the___________________ordinary shares in the Company, represented by share certificate
number___________________(the “Shares”), which are issued and/or registered in our name; and |
| 2. | duly authorised representative and duly appointed attorney-in-fact to sign resolutions in writing of the Company in respect of the
Shares. |
The
Shares have been mortgaged and/or charged to Shining Rich Holdings Limited
耀富控股有限公司 pursuant to a charge over
shares dated ___________________2024 between Beacon Capital Group Inc. as chargor and Shining Rich Holdings Limited 耀富控股有限公司 as
chargee.
This
proxy and power of attorney are irrevocable by reason of being coupled with the interest of Shining Rich Holdings Limited 耀富控股有限公司and
its successors, permitted transferees and permitted assigns as chargee of the Shares.
(The remainder of this page is intentionally
left blank)
This
Deed has been executed as a deed this_________day of___________________2024
EXECUTED
and DELIVERED
as a deed by
, its authorised director
for and on behalf of
Beacon Capital Group
Inc. |
)
)
)
)
)
)
) |
![](https://www.sec.gov/Archives/edgar/data/1541680/000110465924078193/tm2418852d1_ex99-25img011.jpg)
Signature of director
Name: |
SCHEDULE 4
FORM OF NOTICE OF CHARGE
_____________________2024
VNET
Group, Inc. (世纪互联集团) (the “Company”)
c/o Maples Corporate Services
Limited
PO Box 309, Ugland House
Grand Cayman, KY1-1104
Cayman Islands
Dear Sirs
CHARGE OVER SHARES
We hereby notify you that
pursuant to a charge over shares (the “Charge over Shares”) dated _____________________2024
between Beacon Capital Group Inc. as chargor (the “Chargor”) and Shining Rich Holdings Limited
耀富控股有限公司 as chargee (the
“Investor”, which expression shall include its successors, permitted transferees and permitted assigns) (a copy
of which is attached for your records), the Chargor has, inter alia, charged, by way of a first fixed
charge,_____________________class ordinary shares in the Company owned by the Chargor, represented by share certificate[s] number___
[and ___ respectively] (the “Charged Shares”) and charged, by way of a first fixed charge, all of all rights,
benefits and advantages now or at any time in the future deriving from or incidental to any of the Charged Shares
including:
(a) | any proceeds of sale, transfer, redemption, substitution, exchange, conversion or other disposal, or agreement for sale, transfer,
redemption, substitution, exchange, conversion or other disposal, of; |
(b) | any moneys or proceeds paid or payable (including interest and dividends) deriving from; |
(c) | any rights (including to securities), claims, guarantees, indemnities, security or covenants for title in relation to; |
(d) | any awards or judgments in favour of the Charged Property (as defined in the Charge over Shares) in relation to; |
(e) | any certificate or other evidence of title to; |
(f) | all other rights, powers, benefits and privileges, present and future, which the Chargor may have in respect of; and |
| (g) | any other assets or property deriving
from, the Charged Shares from time to time. |
[We
hereby notify you that additional _____________________ class ___ ordinary shares in the
Company represented by share certificate[s] number _____[and __________respectively] owned
by the Chargor shall become subject to the security interests created by the Charge over Shares.]
We request that you include the following
annotation in the Register of Members of the Company and provide the Investor with a certified copy of an extract of the annotated Register
of Members:
“The
__________________class ________ordinary shares issued
and registered in the name of Beacon Capital Group Inc. represented by share certificate[s] number [and ] are charged in favour of Shining
Rich Holdings Limited 耀富控股有限公司
pursuant to a charge over shares dated [Date] 2024, as amended from time to time. The date that this annotation is made
is [Date].”
The terms of the Charge over Shares
contemplate that additional class ordinary shares in the Company owned by the Chargor may become subject to the security interests created
by the Charge over Shares. If any such event occurs, we will issue a further notice to specifying the additional class ordinary shares
in the Company owned by the Chargor which are then subject to the security interests created by the Charge over Shares and request that
an additional annotation is made in the Register of Members.
We request that you, promptly and without
delay, take any action necessary in order to effect a transfer of the Charged Shares made pursuant to the terms of the Charge over Shares
following notice from the Investor including but not limited to passing any board resolutions and giving instructions to your Cayman Islands
registered office provider or your share registrar that maintains your register of members.
This notice is governed by the laws of Hong Kong. Yours
faithfully,
Authorised Signatory
For and on behalf of
Beacon Capital Group Inc.
SCHEDULE 5
INSTRUMENT OF TRANSFER
The undersigned, [shareholder name]
(the “Transferor”), does hereby transfer to Citi (Nominees) Limited (the “Transferee”) [number of shares] Class A
ordinary shares standing in my name in the undertaking called
VNET Group, Inc.
to hold the same unto the Transferee.
Signed by the Transferor:
In the presence of:
Witness to the above signature
Dated:
SCHEDULE 6
CONSENT AND DELIVERY INSTRUCTION – RESTRICTED
HOLDER
[●][●],
20[●]
Citibank, N.A. - ADR Department 388 Greenwich Street New
York, New York 10013
Attn:
Account Management
VNET Group, Inc.
(CUSIP # )*
Dear Sirs:
Reference is hereby made to (i) the Deposit
Agreement, dated as of April 20, 2011, as amended and supplemented from time to time (the “Deposit Agreement”), by
and among VNET Group, Inc. (the “Company”), Citibank, N.A., as Depositary (the “Depositary”), and all
Holders and Beneficial Owners of American Depositary Shares (the “ADSs”) issued thereunder, and (ii) the Amended
and Restated Restricted ADS Letter Agreement, dated as of January 26, 2021 (the “Amended and Restated Restricted ADS
Letter Agreement”), by and between the Company and the Depositary. Capitalized terms used but not defined herein shall have
the meanings given to them in the Deposit Agreement, or, in the event so noted herein, in the Amended and Restated Restricted ADS
Letter Agreement.
The undersigned holder
of Restricted Shares (as defined in the Amended and Restated Restricted ADS Letter Agreement) (the “Restricted Holder”)
hereby advises the Depositary and the Company of its intent to deposit, or to cause to be deposited on its behalf, the Designated Shares
specified in Schedule I hereto and the Company hereby consents to the issuance by the Depositary of the corresponding Designated
Restricted ADSs (as defined in the Amended and Restated Restricted ADS Letter Agreement).
Each of the Restricted
Holder and the Company hereby represents and warrants to the Depositary that (a) the Designated Shares (as defined in the Amended
and Restated Restricted ADS Letter Agreement) being deposited for the purpose of the issuance of Designated Restricted ADSs are validly
issued, fully paid and non-assessable, and free of any preemptive rights of the holders of outstanding Shares, (b) the deposit of
the specified Designated Shares and the issuance and delivery of Designated Restricted ADSs in respect thereof, in each case upon the
terms contemplated in the Amended and Restated Restricted ADS Letter Agreement, will not, as of the time of such deposit and issuance, require registration under
the Securities Act, (c) all approvals required by Cayman Islands law to permit the deposit of the specified Designated Shares under
the Deposit Agreement and the Amended and Restated Restricted ADS Letter Agreement have been obtained prior to the deposit of the specified
Designated Shares, (d) the Designated Shares are of the same class as, and rank pari passu with, the other Shares on deposit
under the Deposit Agreement, and (e) the specified Restricted Holder of the Designated Shares specified on Schedule I hereto
will be the Beneficial Owner of the corresponding Designated Restricted ADSs immediately following the deposit of the Designated Shares.
*
Please insert applicable CUSIP # prior to completion and delivery. General RADSs – CUSIP # 90138A 99 6 / Convertible
Bond RADSs – CUSIP # 90138A 88 9.
Each of the Restricted
Holder and the Company confirms that payment of the applicable fees, taxes and expenses payable under the terms of the Deposit Agreement
and the Amended and Restated Restricted ADS Letter Agreement upon the deposit of Shares and issuance of ADSs is being made to the Depositary
concurrently herewith.
Each of the Restricted
Holder and the Company has caused this Consent and Delivery Instruction to be executed and delivered on its behalf by their respective
officers thereunto duly authorized as of the date set forth above.
[RESTRICTED
HOLDER] |
|
|
|
By: |
|
|
Name: |
|
Title: |
|
|
|
Consented to: |
|
|
|
VNET Group, Inc. |
|
|
|
By: |
|
|
Name: |
|
Title: |
|
Schedule I
Designated Shares |
Designated Restricted ADSs |
of Designated Restricted ADSs |
Shares |
ADSs |
|
SCHEDULE 7
WITHDRAWAL CERTIFICATION
[●][●],
20[●]
Citibank, N.A. - ADR Department 388 Greenwich Street
New York, New
York 10013
Attn:
Account Management
Dear Sirs:
VNET Group, Inc. (Cusip # )*
Reference is hereby made to (i) the Deposit
Agreement, dated as of April 20, 2011, as amended and supplemented from time to time (the “Deposit Agreement”),
by and among VNET Group, Inc. (the “Company”), Citibank, N.A., as Depositary (the “Depositary”),
and all Holders and Beneficial Owners of American Depositary Shares (the “ADSs”) issued thereunder, and (ii) the
Amended and Restated Restricted ADS Letter Agreement, dated as of January 26, 2021 (the “Amended and Restated Restricted
ADS Letter Agreement”), by and between the Company and the Depositary. Capitalized terms used but not defined herein shall have
the meanings given to them in the Deposit Agreement, or, in the event so noted herein, in the Amended and Restated Restricted ADS Letter
Agreement.
1. This
Withdrawal Certification is being furnished in connection with the withdrawal of Restricted Shares upon surrender of Restricted ADSs to
the Depositary.
2. We
acknowledge, or, if we are acting for the account of another person, such person has confirmed to us that it acknowledges, that the Restricted
ADSs and the Restricted Shares represented thereby have not been registered under the Securities Act.
3. We certify that either (check one):
(a) we
have sold or otherwise transferred, or agreed to sell or otherwise transfer and at or prior to the time of withdrawal will have sold or
otherwise transferred, the Restricted ADSs or the Restricted Shares represented thereby to persons other than US Persons (as defined in
Regulation S under the Securities Act) in an offshore transaction (as defined in Regulation S under the Securities Act) in accordance
with Rule 904 of Regulation S under the Securities Act [, provided that in connection with such transfer, we have
delivered or will deliver an opinion of U.S. counsel reasonably satisfactory to the Depositary and the Company to the effect that the
transfer is exempt from the registration requirements of the Securities Act], or
(b) we
have sold or otherwise transferred, or agreed to sell or otherwise transfer and at or prior to the time of withdrawal will have sold or
otherwise transferred, the Restricted ADSs or the Restricted Shares represented thereby in a transaction exempt from registration pursuant
to Rule 144 under the Securities Act[, provided that in connection with such transfer, we have delivered or will deliver
an opinion of U.S. counsel reasonably satisfactory to the Depositary and the Company to the effect that the transfer is exempt from the
registration requirements of the Securities Act], or
(c) we
will be the beneficial owner of the Restricted Shares upon withdrawal, and, accordingly, we agree that (x) we will not offer, sell,
pledge or otherwise transfer the Restricted Shares except (A) in a transaction exempt from registration pursuant to Rule 144
under the Securities Act, if available, (B) in an offshore transaction (as defined in Regulation S under the Securities Act) to persons
other than U.S. Persons (as defined in Regulation S under the Securities Act) in accordance with Rule 904 of Regulation S under the
Securities Act, (C) pursuant to any other available
exemption from the registration requirements of the Securities Act, or (D) pursuant to an effective registration statement under
the Securities Act, in each case in accordance with any applicable securities laws of the states of the United States, and (y) we
will not deposit or cause to be deposited such Restricted Shares into any depositary receipt facility established or maintained by a depositary
bank (including any such facility maintained by the Depositary), so long as such Restricted Shares are “Restricted Securities”
(within the meaning of given to such term in the Deposit Agreement).
*
Please insert applicable CUSIP # prior to completion and delivery. General RADSs – CUSIP # 90138A 99 6 / Convertible Bond
RADSs – CUSIP # 90138A 88 9.
The undersigned hereby instructs the Depositary
to cancel the Restricted ADSs specified below, to deliver the Shares represented thereby as specified below and, if applicable, to issue
to the undersigned a statement identifying the number of Restricted ADSs held by the undersigned and not cancelled pursuant to these instructions.
The undersigned appoints the Depositary and any of its authorized representatives as its attorney to take the actions contemplated above
on behalf of the undersigned. The undersigned confirms that applicable fees, taxes and expenses payable under the terms of the Deposit
Agreement and the Amended and Restated Restricted ADS Letter Agreement in connection the cancellation of Restricted ADSs and the withdrawal
of the corresponding Restricted Shares is being made to the Depositary concurrently herewith.
Name of Owner: |
|
|
|
Social Security Number or |
|
Taxpayer Identification Number
of Owner: |
|
|
|
Account Number of Owner: |
|
|
|
Number of Restricted ADSs to
be cancelled: |
|
|
|
Delivery Information for delivery
of Shares Represented by Restricted ADSs to be cancelled: |
|
|
|
Date: |
|
|
|
Signature of Owner: |
(Identify Title if Acting in
Representative Capacity) |
MEDALLION GUARANTEE
Medallion
Guarantee Stamp (Notary public seal is not acceptable)
Name of Firm Issuing Guarantee: |
|
Authorized Signature of Officer: |
|
Title of Officer Signing This Guarantee: |
|
Area Code and Telephone Number: |
|
The signature(s) above must be
guaranteed by an Eligible Guarantor Institution that is a member in good standing of a recognized Medallion Signature Guarantee Program
approved by The Securities Transfer Association, Inc.
The signature(s) must be stamped
with a Medallion Signature Guarantee by a qualified financial institution, such as a commercial bank, savings bank, savings and loan institutions,
U.S. stock broker and security dealer, or credit union, that is participating in an approved Medallion Signature Guarantee Program. A
NOTARY PUBLIC SEAL IS NOT ACCEPTABLE.
SCHEDULE 8
TRANSFER CERTIFICATION
[●][●],
20[●]
Citibank, N.A. - ADR Department
388 Greenwich Street
New York, New York 10013
Attn: Account Management
VNET Group, Inc.
(CUSIP # )*
Dear Sirs:
Reference is hereby
made to (i) the Deposit Agreement, dated as of April 20, 2011, as amended and supplemented from time to time (the “Deposit
Agreement”), by and among VNET Group, Inc., (the “Company”), Citibank, N.A., as Depositary (the “Depositary”),
and all Holders and Beneficial Owners of American Depositary Shares (the “ADSs”) issued thereunder, and (ii) the
Amended and Restated Restricted ADS Letter Agreement, dated as of January 26, 2021 (the “Amended and Restated Restricted
ADS Letter Agreement”), by and between the Company and the Depositary. Capitalized terms used but not defined herein shall have
the meanings given to them in the Deposit Agreement, or, in the event so noted herein, in the Amended and Restated Restricted ADS Letter
Agreement.
In connection with
the transfer of the Restricted ADSs surrendered herewith (the “Surrendered Restricted ADSs”) to the person(s) specified
in Schedule I hereto, the undersigned Holder certifies that:
(CHECK ONE)
¨ (a) The
Surrendered Restricted ADSs are being transferred to a person who the undersigned Holder reasonably believes is a “Qualified Institutional
Buyer” (within the meaning of Rule 144A under the Securities Act) for the account of a Qualified Institutional Buyer in a transaction
meeting the requirements of Rule 144A under the Securities Act and the transferee is acquiring the Surrendered Restricted ADSs for
investment purposes only without a view to distribution.
OR
¨ (b) The Surrendered
Restricted ADSs are being transferred to a person other than a U.S. Person (as defined in Regulation S under the Securities Act) in an
offshore transaction meeting the requirements of Regulation S under the Securities Act and the transferee is acquiring the Surrendered
Restricted ADSs for investment purposes without a view to distribution.
If neither of the
items above is checked, the Depositary shall not be obligated to register the Surrendered Restricted ADSs in the name of any person other
than the Holder thereof unless and until the conditions to any such transfer or registration set forth in the Deposit Agreement and the
Amended and Restated Restricted ADS Letter Agreement shall have been satisfied (including, without limitation, the delivery of an opinion
of U.S. securities counsel).
*
Please insert applicable CUSIP # prior to completion and delivery. General RADSs – CUSIP # 90138A 99 6 / Convertible Bond
RADSs – CUSIP # 90138A 88 9.
The transferor confirms
that applicable taxes and expenses payable in connection the transfer of ADSs under the terms of the Deposit Agreement and the Amended
and Restated Restricted ADS Letter Agreement is being made to the Depositary concurrently herewith.
The transferee has
and, if acting on behalf of the Beneficial Owner, such Beneficial Owner has agreed to take a Restricted ADSs identical to the Restricted
ADSs surrendered for transfer and subject to the same restrictions on transfer set forth in the Amended and Restated Restricted ADS Letter
Agreement.
MEDALLION GUARANTEE
Medallion
Guarantee Stamp (Notary public seal is not acceptable)
Name of Firm Issuing Guarantee: |
|
Authorized Signature of Officer: |
|
Title of Officer Signing This Guarantee: |
|
Area Code and Telephone Number: |
|
The signature(s) above must be guaranteed by an Eligible Guarantor Institution that is a member in good standing of a recognized Medallion
Signature Guarantee Program approved by The Securities Transfer Association, Inc.
The
signature(s) must be stamped with a Medallion Signature Guarantee by a qualified financial institution, such as a commercial bank, savings
bank, savings and loan institutions, U.S. stock broker and security dealer, or credit union, that is participating in an approved Medallion
Signature Guarantee Program. A NOTARY PUBLIC SEAL IS NOT ACCEPTABLE.
SCHEDULE 9
ISSUER CONSENT LETTER
VNET Group, Inc.
Guanjie Building Southeast 1st Floor
10# Jiuxianqiao
East Road
Chaoyang District, Beijing 100016
People’s Republic of China
[Date]
Securities Services Operations, Citibank Hong Kong
9/F Citi Tower
One Bay East
83 Hoi Bun Road
Kwun Tong, Kowloon, Hong Kong.
Citibank, N.A., as depositary 388 Greenwich Street New York, NY10013
Attn: ADR Department
Ladies and Gentlemen:
VNET Group, Inc. (the
“Company”) hereby consents to the deposit into the ADR facility existing under the terms of the Deposit Agreement,
dated as of April 20, 2011 (the “Deposit Agreement”), by and among the Company, Citibank, N.A., as Depositary,
and the Holders and Beneficial Owners of American Depositary Shares issued thereunder, by the person(s) listed below of the Shares
set forth opposite their name (none of which are “Restricted Securities” within the meaning given to such term in the Deposit
Agreement).
VNET Group, Inc.
SCHEDULE 10
CONFIRMATION LETTER FOR SHARE TRANSFERS
VNET Group, Inc.
Guanjie Building Southeast 1st Floor
10# Jiuxianqiao
East Road
Chaoyang District, Beijing 100016
People’s Republic of China
To: | Maples Fund Services (Cayman) Limited c/o Maples Fund Services (Asia) Limited
16th Floor, Central Plaza, 18 Harbour Road, Wanchai, |
Hong Kong
Attn: Chris Liu/ Tim Lee/ Gary Lau
Date:
Dear Sirs,
VNET Group, Inc. (the “Company”)
Transfer of Class A
Ordinary Shares
I hereby confirm, on behalf of the board of directors
of the Company, that you are instructed to register the transfer of Class A ordinary shares of the Company from the transferor(s) listed
in Exhibit A attached hereto to the transferees listed in Exhibit A attached hereto, upon receipt of the relevant signed instruments
of transfer and without seeking further confirmation on the respective transfer.
The Company will issue new share certificates
accordingly. A copy of the executed share certificate will be provided for your records.
The use of this letter was approved by written
resolutions of the directors of the Company passed on 23 September 2011.
Yours faithfully,
Name:
Title: Director
For and on behalf of the Company
Exhibit A
Transferor(s) |
Transferee(s) |
Share Certificate
No. |
Number of Class A
Ordinary Shares |
|
|
|
|
SCHEDULE 11
OFFICER’S CERTIFICATE
I, [●] of VNET Group, Inc., an exempted company with limited
liability incorporated under the laws of the Cayman Island (the “Company”), do hereby certify that:
(a) A
registration has been made in the share register in the name of Citi (Nominees) Limited for [●] Class A ordinary shares, which
shares are represented by Certificate No. [●] registered in the name of Citi (Nominees) Limited, as depositary (the“Depositary”).
(b) Attached
hereto as Exhibit A is a true, correct and complete specimen of the certificate representing Class A ordinary shares of the
Company duly authorized and validly issued in accordance with the constituent documents of the Company.
(c) The
Class A ordinary shares referred to above are being deposited in accordance with the Deposit Agreement, dated as of April 20,
2011 by and among the Company, the Depositary and all Holders and Beneficial Owners of American Depositary Shares issued thereunder.
(d) Attached
hereto as Exhibit B is a true and correct extract from Maples Fund Services (Asia) Limited showing the Depositary as a member of
the Company reflecting all Class A ordinary shares heretofore issued to the Depositary, and not otherwise cancelled by the Depositary,
including, without limitation, those Class A ordinary shares referred to in (a) above.
IN
WITNESS WHEREOF, I have duly executed and delivered this Officer’s Certificate dated of , 20 .
VNET Group, Inc.
SCHEDULE 12
CONSENT AND DELIVERY INSTRUCTION - COMPANY
[●][●],
20[●]
Citibank, N.A. - ADR Department
388 Greenwich Street
New York, New York 10013
Attn: Account Management
VNET Group, Inc. (CUSIP # )*
Dear Sirs:
Reference is hereby made to
(i) the Deposit Agreement, dated as of April 20, 2011, as amended and supplemented from time to time (the
“Deposit Agreement”), by and among VNET Group, Inc. (the “Company”), Citibank, N.A., as
Depositary (the “Depositary”), and all Holders and Beneficial Owners of American Depositary Shares (the
“ADSs”) issued thereunder, and (ii) the Amended and Restated Restricted ADS Letter Agreement, dated as of
January 26, 2021 (the “Amended and Restated Restricted ADS Letter Agreement”), by and between the Company
and the Depositary. Capitalized terms used but not defined herein shall have the meanings given to them in the Deposit Agreement,
or, in the event so noted herein, in the Amended and Restated Restricted ADS Letter Agreement.
The Company hereby deposits
the Designated Shares specified in Schedule I hereto on behalf of the specified beneficial owners thereof and hereby consents to
the issuance by the Depositary of the corresponding Designated Restricted ADSs (as defined in the Amended and Restated Restricted ADS
Letter Agreement).
The Company hereby represents
and warrants to the Depositary that (a) the Designated Shares (as defined in the Amended and Restated Restricted ADS Letter Agreement)
being deposited for the purpose of the issuance of Designated Restricted ADSs are validly issued, fully paid and non-assessable, and free
of any preemptive rights of the holders of outstanding Shares, (b) the deposit of the specified Designated Shares and the issuance
and delivery of Designated Restricted ADSs in respect thereof, in each case upon the terms contemplated in the Amended and Restated Restricted
ADS Letter Agreement, will not, as of the time of such deposit and issuance, require registration under the Securities Act, (c) all
approvals required by Cayman Islands law to permit the deposit of the specified Designated Shares under the Deposit Agreement and the
Amended and Restated Restricted ADS Letter Agreement have been obtained prior to the deposit of the specified Designated Shares, (d) the
Designated Shares are of the same class as, and rank pari passu with, the other Shares on deposit under the Deposit Agreement,
and (e) the specified beneficial owners of the Designated Shares specified on Schedule I hereto will be the Beneficial Owners of
the corresponding Designated Restricted ADSs immediately following the deposit of the Designated Shares.
The Company confirms that payment
of the applicable fees, taxes and expenses payable under the terms of the Deposit Agreement and the Amended and Restated Restricted ADS
Letter Agreement upon the deposit of Shares and issuance of ADSs is being made to the Depositary concurrently herewith.
The Company has caused this
Consent and Delivery Instruction to be executed and delivered on its behalf by their respective officers thereunto duly authorized as
of the date set forth above.
*
Please insert applicable CUSIP # prior to completion and delivery. General RADSs – CUSIP # 90138A 99 6 / Convertible Bond
RADSs – CUSIP # 90138A 88 9.
|
VNET Group, Inc. |
|
|
|
By: |
|
Name: |
|
Title: |
Schedule I
Designated Shares |
Designated Restricted ADSs |
Name and Address of
Beneficial Owner of Designated
Restricted ADSs |
Shares |
ADSs |
|
The
parties hereto have executed and delivered this Deed the day and year first above written.
THE
CHARGOR
EXECUTED
and DELIVERED
as a deed by CHEN SHENG
, its authorised director for and
on behalf of
Beacon
Capital Group Inc. |
)
)
)
)
)
)
) |
![](https://www.sec.gov/Archives/edgar/data/1541680/000110465924078193/tm2418852d1_ex99-25img011.jpg) /s/
CHEN SHENG
Signature of director
Name: CHEN SHENG |
[Execution
Page – Share Charge (BVI-1 – Listco) –BVI-1]
THE
INVESTOR
EXECUTED
and DELIVERED
as a deed by Wang
Peng
, its authorised signatory for and
on behalf of
SHINING RICH HOLDINGS LIMITED
耀富控股有限公司 |
)
)
)
)
)
)
) |
/s/
Wang Peng
Signature of authorised signatory
Name: Wang Peng |
![](https://www.sec.gov/Archives/edgar/data/1541680/000110465924078193/image_011.jpg) |
[Execution
Page – Share Charge (BVI-1 – Listco) – Investor]
Exhibit 99.26
EXECUTION VERSION
Dated
5th day of July 2024 |
FAST HORSE TECHNOLOGY
LIMITED
as Chargor
IN FAVOUR OF
SHINING RICH HOLDINGS
LIMITED
耀富控股有限公司
as Investor
|
CHARGE OVER SHARES
THIS
DEED is made on the 5th day of July 2024
BY:
FAST
HORSE TECHNOLOGY LIMITED, a BVI business company incorporated under the laws of the British Virgin Islands with limited liability
with company number 368150 and with its registered office at Vistra Corporate Services Centre, Wickhams Cay II, Road Town, Tortola, VG1110,
British Virgin Islands (the “Chargor”)
IN FAVOUR OF:
SHINING
RICH HOLDINGS LIMITED 耀富控股有限公司, a BVI business company incorporated
under the laws of the British Virgin Islands with limited liability with company number 1972405 and with its registered office at Portcullis
Chambers, 4th Floor Ellen Skelton Building, 3076 Sir Francis Drake Highway, Road Town, Tortola, British Virgin Islands VG1110 (the “Investor”).
(The parties referred above
shall collectively be referred to as the “Parties” and each a “Party”.)
NOW
THIS DEED WITNESSES as follows:
1. | DEFINITIONS AND INTERPRETATION |
Unless otherwise defined in this Deed
or unless the context otherwise requires, terms and expressions defined in or construed for the purposes of the Subscription Agreement
as amended from time to time shall bear the same meanings when used herein. In addition:
“Additional Ordinary Shares”
means:
| (b) | any
Class A Shares and/or Class B Shares acquired by the Chargor in respect of Shares
by reason of a stock split, stock dividends, stock dividend paid or made in respect of Shares
in the form of Class A Shares or Class B Shares (as the case may be), reclassification,
conversion or otherwise, including any Class A Shares converted from Shares in the form
of Class B Shares in accordance with the memorandum and articles of association of Listco
and in accordance with the ADS Conversion Process (or otherwise); and |
| (c) | any
Class A Shares released or returned by the Depositary (or its nominee) to the Chargor
as a result of: |
| (i) | any
Shares being unable to be deposited with the Depositary in accordance with the ADS Conversion
Process for any reason; |
| (ii) | any
ADSs previously issued in exchange for the deposit of such Shares being surrendered for the
purpose of withdrawal of the Class A Shares represented thereby (whether or not at the
direction of the Investor). |
“ADS Conversion Process”
means the process comprising of the deposit of all or any part of the Class A Shares with the Depositary (or its nominee) in exchange
for the issuance by the Depositary of a corresponding number of ADSs representing the Class A Shares being exchanged.
“BVI Act” means
the British Virgin Islands Business Companies Act 2004, as amended and/or supplemented from time to time.
“Certificated Shares”
means any and all of the Shares which are represented by a share certificate from time to time.
“Charged Property”
means: (a) the Share Collateral (and any part of them); (b) the Related Rights in relation to the Share Collateral; and (c) all
the assets and/or undertaking (including but not limited to the Share Collateral and all Related Rights in relation thereto) of the Chargor
which from time to time are the subject of the security created or expressed to be created in favour of the Investor by or pursuant to
this Deed.
“Collateral Rights”
means all rights, powers and remedies of the Investor provided by or pursuant to this Deed or by law.
“Companies Act”
means the Companies Act (As Revised) of the Cayman Islands.
“Companies Ordinance”
means the Companies Ordinance (Cap. 622 of the laws of Hong Kong).
“Event of Default”
has the meaning given to the term “Event of Default” under the Note Instrument.
“Further Shares”
means all Class A Shares and Class B Shares held by the Chargor which are required under paragraph (b) of clause 15.21
(Conditions Subsequent) or any other provisions of the Subscription Agreement to become subject to the Security conferred or intended
to be conferred on the Investor by or pursuant to this Deed in form and substance satisfactory to the Investor.
“Initial Class B Shares”
means the 19,670,117 Class B Shares owned by the Chargor, represented by share certificate numbers OB-033 and OB-037.
“Issuer” means GenTao
Capital Limited, a BVI business company incorporated under the laws of the British Virgin Islands with limited liability with company
number 1759132 and with its registered office at Vistra Corporate Services Centre, Wickhams Cay II, Road Town, Tortola, VG1110, British
Virgin Islands.
“Listco”
means VNET Group, Inc. ( 世纪互联集团), an exempted company incorporated in the Cayman
Islands with limited liability whose class A ordinary shares (in the form of ADSs) are traded under the ticker symbol “VNET”
on NASDAQ Global Select Market.
“Receiver” means
a receiver or receiver and manager or an administrative receiver of the whole or any part of the Charged Property and that term will
include any appointee under a joint and/or several appointment.
“Register of Members”
means the Register of Members of the Listco (including any applicable branch register and non-listed shares register) maintained by the
Listco in accordance with the Companies Act.
“Related Rights”
means, in relation to any Charged Property:
| (a) | any
proceeds of sale, transfer, redemption, substitution, exchange, conversion or other disposal,
or agreement for sale, transfer, redemption, substitution, exchange, conversion or other
disposal, of; |
| (b) | any
moneys or proceeds paid or payable (including interest and dividends) deriving from; |
| (c) | any
rights (including to securities), claims, guarantees, indemnities, security or covenants
for title in relation to; |
| (d) | any
certificate or other evidence of title to; |
| (e) | all
other rights, powers, benefits and privileges, present and future, which the Chargor may
have in respect of; and/or |
| (f) | any
other assets or property deriving from, |
the Shares from time to time, including
(A) any ADSs issued in exchange for the deposit of Shares with the Depositary (or its nominee) in accordance with clause 15.21 (Conditions
Subsequent) of the Subscription Agreement and the ADS Conversion Process and (B) all other securities, assets or rights which
the Chargor may have to any or all of the Shares which are deposited with or registered in the name of the Depositary or any other depositary,
custodian, nominee, clearing house or system, investment manager, chargee or other similar person or their nominee, in each case whether
or not on a fungible basis (including any rights against any such person).
“Secured Obligations”
means all obligations at any time due, owing or incurred by the Obligors, to the Investor under the Transaction Documents (or any of
them) (as amended, restated, supplemented and/or novated from time to time), whether present or future, actual or contingent (and whether
incurred solely or jointly and whether as principal or surety or in some other capacity).
“Security
Period” means the period from and including the date of execution of this Deed to and including the date of discharge of the
security created by this Deed in accordance with Clause 19 (Release of Security).
“Share Registrar”
means Maples Fund Services (Asia) Limited and any successor share registrar for Listco acceptable to the Investor.
“Shares” means:
| (a) | the
Initial Class B Shares; and |
| (b) | the
Additional Ordinary Shares. |
“Share Collateral”
means all present and future Shares beneficially owned by the Chargor, and/or any substitute or additional Shares thereof from time to
time, while any Secured Obligations are outstanding.
“Subscription Agreement”
means the subscription agreement dated 2024
entered into between (among others) the Issuer as issuer and the Investor as investor, pursuant to which, the Issuer agrees to issue
to the Investor, and the Investor agrees to subscribe from the Issuer, the Note (as supplemented, modified or amended from time to time).
“Triggering
Event” has the meaning given to it in Clause 7.1.1.
In this Deed:
| 1.2.1 | the
rules of construction set out in clause 1.2 of the Subscription Agreement shall apply
to this Deed mutatis mutandis; |
| 1.2.2 | references
in this Deed to any Clause or Schedule shall be to a clause or schedule contained in this
Deed; and |
| 1.2.3 | any
reference to the Chargor and the Investor shall be construed so as to include its or their
(and any subsequent) successors and any permitted assigns and transferees in accordance with
their respective interests. |
The Chargor hereby covenants with the
Investor that it shall on demand pay and discharge each of the Secured Obligations on their due date as provided for in the Transaction
Documents.
| (a) | All
the security created under this Deed: |
| (i) | is
created in favour of the Investor; |
| (ii) | is
created over present and future assets of the Chargor; |
| (iii) | is
created by the Chargor as the beneficial owner of the Charged Property; and |
| (iv) | is
continuing security for the payment, discharge and performance of all the Secured Obligations. |
| (b) | If
the rights of the Chargor under a document cannot be the subject of this Security without
the consent of a party to that document: |
| (i) | the
Chargor must notify the Investor promptly; |
| (ii) | this
Security will secure all amounts which the Chargor may receive, or has received, under that
document or in respect of that other asset, but exclude the document or that other asset
itself; and |
| (iii) | unless
the Investor otherwise requires, the Chargor must use reasonable endeavours to obtain the
consent of the relevant party to that document being the subject of this Security. |
| (a) | The
Chargor hereby charges as beneficial owner in favour of the Investor, as security for the
payment and discharge of the Secured Obligations, by way of first fixed charge, all the Chargor’s
right, title and interest from time to time in and to the Share Collateral and all its other
present and future Related Rights in relation thereto. |
| (b) | The
Chargor hereby authorises the Investor to arrange at any time following the occurrence of
an Event of Default which is continuing for the Charged Property or any part thereof to be
registered in the name of the Investor (or its nominee) thereupon to be held, as so registered,
subject to the terms of this Deed and at the request of the Investor, the Chargor shall without
delay procure that the foregoing shall be done. |
3.3 | Creation of floating charge |
The
Chargor charges as beneficial owner to the Investor by way of first floating charge and as a continuing security for the payment and
discharge of the Secured Obligations all of the Charged Property, other than any Charged Property validly and effectively charged or
assigned (whether at law or in equity) pursuant to Clause 3.2 (Fixed Charge).
3.4 | Conversion of floating charge |
Notwithstanding
anything express or implied in this Deed, the Investor may at any time after the occurrence of an Event of Default, by giving notice
in writing to that effect to the Chargor convert the floating charge created by Clause 3.3 (Creation of floating charge)
into a fixed charge as regards any assets specified in such notice. The conversion shall take effect immediately upon the giving of the
notice.
Notwithstanding anything express or implied
in this Deed, and without prejudice to any law which may have similar effect, if:
| (i) | the
Chargor creates or attempts to create any security over all or any of the Charged Property
without the prior consent of the Investor or save as expressly permitted under any Transaction
Document; or |
| (ii) | any
person levies or attempts to levy any distress, sequestration, execution or other process
against, or appoints a receiver over, any of the Charged Property; or |
| (iii) | if
any steps are taken, including the presentation of a petition and the making of an application
for the liquidation, insolvency or administration of the Chargor or if a provisional liquidator
or liquidator is appointed; or |
| (iv) | in
any other circumstances prescribed by law, |
then
the floating charge created by Clause 3.3 (Creation of floating charge) will automatically (without notice) be converted
into a fixed charge as regards all of the assets subject to the floating charge.
The
giving of a notice by the Investor pursuant to Clause 3.4(a) (Conversion by notice) in relation to any Charged Property
shall not be construed as a waiver or abandonment of the rights of the Investor to serve similar notices in respect of any other class
of assets or any other right of the Investor.
| 4.1.1 | The
Chargor shall promptly after execution of this Deed (or, in respect of any Additional Ordinary
Shares acquired after the date of this Deed, promptly after such Additional Ordinary Shares
become subject to the Security conferred or intended to be conferred on the Investor by or
pursuant to this Deed) procure that the following notation to be entered on the Register
of Members provided that such notation shall be completed to reflect the details of the relevant
Shares: |
“The
[·] class [·]
ordinary shares issued and registered in the name of Fast Horse Technology Limited represented by share certificate[s] number [·]
[and [·]] are charged in favour of Shining Rich Holdings Limited 耀富控股有
限 公司 pursuant to a charge over shares dated [Date] 2024, as amended from time to time. The date that
this annotation is made is [Date].”
| 4.1.2 | The
Chargor shall provide the Investor with a certified true copy of an extract of the Register
of Members with the annotation referred to in Clause 4.1.1 within five (5) Business
Days of the date of this Deed (or, in respect of any Additional Ordinary Shares acquired
after the date of this Deed, within five (5) Business Days of the date on which such
Additional Ordinary Shares become subject to the Security conferred or intended to be conferred
on the Investor by or pursuant to this Deed). |
| 4.1.3 | The
Chargor represents and warrants that, on the date of this Deed, it is not registered as a
non-Hong Kong company under Part 16 of the Companies Ordinance nor has it made any application
to be so registered. |
| 4.1.4 | If
at any time after the date of this Deed, the Chargor applies to have itself registered as
a non-Hong Kong company under Part 16 of the Companies Ordinance, it shall promptly
notify the Investor in writing. Without prejudice to the foregoing, upon its being registered
as a non-Hong Kong company under Part 16 of the Companies Ordinance, the Chargor shall
promptly: |
| (a) | notify
the Investor and provide it with the details of such registration; and |
| (b) | (and
in any case within one month after the date of such registration) take all necessary steps
to comply with the requirements under section 340 of the Companies Ordinance in respect of
this Deed and the security created hereby. |
| 4.1.5 | Registration
of Security in the BVI |
| (a) | The
Chargor is required by section 162 of the BVI Act to establish and maintain a register of
charges (“Register of Charges”) and details of the Security created by
this Deed shall be entered in the Register of Charges kept at the Chargor’s registered
office or at the office of the registered agent of the Chargor. The Chargor shall, within
five (5) Business Days of the execution of this Deed and in compliance with the BVI
Act, enter the details of the Security created by this Deed in the Register of Charges maintained
at the Chargor’s registered office. The Chargor shall, within five (5) Business
Days of the execution of this Deed, deliver to the Investor a copy of the Register of Charges
duly certified by a director of the Chargor. |
| (b) | The
Chargor shall, or shall assist the Investor to, contemporaneously with the execution of this
Deed, register with the Registrar of Corporate Affairs in the British Virgin Islands details
of the Security created by this Deed in the Register of Registered Charges maintained at
the Registrar pursuant to section 163 of the BVI Act. |
| (c) | If
the registration referred to in paragraph (b) of this Clause 4.1.5 is not being effected
by or on behalf of the Investor, the Chargor shall, promptly on receipt, and in any event,
within fifteen (15) Business Days from the date of this Deed, deliver to the Investor a true
copy of the Certificate of Registration of Charge in relation to the registration of this
Deed duly certified by a director of the Chargor. |
4.2 | [Intentionally deleted] |
4.3 | Delivery
of Documents of Title |
The Chargor shall:
| 4.3.1 | on
the date of this Deed, deposit with the Investor (or procure the deposit with the Investor
of) an acknowledgment from each person (if any) holding any Shares existing as at the date
of this Deed as its nominee, substantially in the form set out in Schedule 2 (Form of
Acknowledgment from Nominee); |
| 4.3.2 | procure
that, where any nominee holding any Shares or Related Rights ceases to be or act as such,
the successor nominee (or, if more than one, each successor nominee)) shall forthwith execute
and deliver to the Investor an acknowledgment in respect of such Shares or Related Rights
in substantially the form set out in Schedule 2 (Form of Acknowledgment from Nominee)
or in such other form as the Investor may reasonably request; |
| 4.3.3 | on
the date of this Deed, deposit with the Investor (or procure the deposit with the Investor
of) the following in respect of any Initial Class B Shares existing as at the date of
this Deed: |
| (a) | all
share certificates (if any) or other documents of title; |
| (b) | an
instrument of transfer in the form set out in Schedule 1 (Form of Instrument of Transfer)
which has been duly executed by the Chargor as transferor in blank (with the date, the
name of the transferee and the number of shares left blank); |
| (c) | an
irrevocable proxy and irrevocable power of attorney made in respect of the Share Collateral
in the form set out in Schedule 3 (Form of Irrevocable Appointment of Proxy and Power
of Attorney) which has been duly executed by the Chargor in blank (with the date and
the number of shares left blank); and |
| (d) | a
notice of charge from the Chargor to the Listco in the form set out in Schedule 4 (Form of
Notice of Charge) which has been duly executed by the Chargor, |
the documents set out in paragraphs (a) to
(d) above together, the “Security Deliverables”;
| 4.3.4 | deposit
with the Investor (or procure the deposit with the Investor of) such documents as the Investor
deems necessary or desirable for the ADS Conversion Process in form and substance satisfactory
to the Investor (collectively, the “ADS Conversion Documents”): |
| (a) | on
the date of this Deed, all documents for the ADS Conversion Process in the form set out in
Schedule 5 to Schedule 13 which have been duly executed by the Chargor or the Listco (as
the case may be); and |
| (b) | such
further ADS Conversion Documents as the Investor deems necessary or desirable in accordance
with clause 15.21 (Conditions Subsequent) of the Subscription Agreement, |
| 4.3.5 | in
respect of the Additional Ordinary Shares, the Chargor shall, deliver (or procured there
to be delivered) to the Investor the following documents in form and substance satisfactory
to the Investor, (i) in the case of any Additional Ordinary Shares that are Further
Shares, on or prior to the date on which such Additional Ordinary Shares are required to
be furnished as Security pursuant to paragraph (b) of clause 15.21 (Conditions Subsequent)
or any other provisions of the Subscription Agreement (or, in respect of the ADS Conversion
Documents only, if later, the date on which any documents in respect of such Additional Ordinary
Shares are required to be delivered under paragraph (d) of clause 15.21 (Conditions
Subsequent) of the Subscription Agreement); and (ii) in the case of other Additional
Ordinary Shares, on the date on which such Additional Ordinary Shares become so subject to
the Security conferred or intended to be conferred on the Investor by or pursuant to this
Deed (or, in respect of the ADS Conversion Documents only, if later, the date on which any
documents in respect of such Additional Ordinary Shares are required to be delivered under
paragraph (d) of clause 15.21 (Conditions Subsequent) of the Subscription Agreement): |
| (a) | a
certified true copy of an extract of the Register of Members showing the Chargor as the registered
owner of the Additional Ordinary Shares; |
| (b) | original
valid and duly issued share certificates or other documents of title representing such Additional
Ordinary Shares; and |
| (c) | all
Security Deliverables in respect of such Additional Ordinary Shares (each of which has been
duly executed by the Chargor in the manner set out in Clause 4.3.3) in form and substance
satisfactory to the Investor; |
| (d) | all
ADS Conversion Documents; |
| 4.3.6 | on
the date of any removal or resignation of any director of the Chargor who executed any Security
Deliverables or any documents deposited with the Investor pursuant to Clauses 4.3.3, 4.3.4
or 4.3.5 in respect of any Shares during the Security Period, the Chargor shall promptly
deliver or cause to be delivered to the Investor a replacement of all such items (each having
been duly executed by a continuing or replacement director of the Chargor (in the case of
any Security Deliverables) in the manner set out in Clause 4.3.3 and (in other cases) in
form and substance satisfactory to the Investor) and a certified copy of the register of
directors of the Chargor maintained by the Chargor in accordance with the BVI Act in form
and substance satisfactory to the Investor; |
| 4.3.7 | if
at any time during the Security Period, the Investor determines that the form of any Security
Deliverable or any documents deposited with the Investor pursuant to Clause 4.3.4 or 4.3.5(d) has
been amended, updated or replaced by Listco, the Depositary, the Share Registrar and/or the
registered office provider of Listco rendering such item or document delivered incapable
of being used to effect the ADS Conversion Process, the Chargor shall promptly on demand
by the Investor, deliver to the Investor a copy of the amended, updated or replaced form
of such item or document (each having been duly executed by the Chargor (in the case of any
Security Deliverables) in the manner set out in Clause 4.3.3) in form and substance satisfactory
to the Investor; |
| 4.3.8 | the
Investor shall be entitled to hold all documents and instruments delivered to it pursuant
to this Clause 4.3 until the end of the Security Period, and the Chargor hereby irrevocably
and unconditionally authorises (and, with respect to paragraph 4.3.8 of this Clause 4.3.8,
requests and authorises) the Investor to (and the Investor shall be entitled to), at any
time after the occurrence of an Event of Default which is continuing, complete, date and
put into effect, under its power of attorney given in this Deed or otherwise, such documents
and instruments to effect a transfer of all or any Shares in favour of itself or such other
person as it shall direct; and |
| 4.3.9 | any
document or instrument required to be delivered to the Investor pursuant to this Clause 4.3
which is for any reason not so delivered or which is released by the Investor to the Chargor
shall be held on trust by the Chargor for the Investor. |
5.1 | Further
Assurance: General |
The Chargor shall promptly at its own
cost do all such acts and/or execute all such documents (including without limitation assignments, transfers, mortgages, charges, notices
and instructions) as the Investor may reasonably specify (and in such form as the Investor may reasonably require in favour of the Investor
or its nominee(s)):
| 5.1.1 | to
create, perfect, protect or preserve the security created or intended to be created in respect
of the Charged Property (which may include, without limitation, the re-execution of this
Deed, the execution by the Chargor of a mortgage, charge or assignment over all or any of
the assets constituting, or intended to constitute, any part of the Charged Property) or
for the exercise of the Collateral Rights, and the giving of any notice, order or direction
and the making of any filing or registration, or for the exercise of the Collateral Rights;
and/or |
| 5.1.2 | after
the occurrence of a Triggering Event, to facilitate the realisation and/or enforcement of
the assets constituting, or intended to constitute, the Charged Property (including to execute
and complete in favour of the Investor, Listco, the Share Registrar, the registered office
provider of Listco, the Depositary (or the nominee of any of the foregoing) or any purchaser
any document and to give any instruction which the Investor may reasonably require to effect
any step of the ADS Conversion Process or otherwise vest any of the Charged Property in the
Investor, any Receiver or any other transferee or purchaser). |
The Chargor shall from time to time
take all such action (whether or not requested to do so by the Investor) as is or shall be reasonably available to it (including without
limitation obtaining and/or effecting all approvals) as may be necessary for the purpose of the creation, perfection, protection or maintenance
of any security conferred or intended to be conferred on the Investor by or pursuant to this Deed.
The Chargor shall promptly deliver
to the Investor all information that is available to it and that is required in order for the Investor to comply with any applicable
laws or regulations in respect of any Charged Property (including without limitation section 329 of the Securities and Futures Ordinance
(Cap. 571 of the Laws of Hong Kong), or any similar provision in any articles of association or constitutional documents relating to
any Charged Property.
5.4 | Implied Covenants for Title |
The obligations of the Chargor under
this Deed shall be in addition to any covenants for title deemed to be included in this Deed under applicable law.
6. | RESTRICTIONS ON DEALINGS |
The Chargor undertakes that it shall
not, at any time during the subsistence of this Deed, create or permit to subsist any Security over all or any part of the Charged Property
unless expressly permitted under and in accordance with any of the Transaction Documents.
6.2 | No Disposal of Interests |
The Chargor undertakes that, during
the subsistence of this Deed, it shall not, and shall not agree to:
| (a) | sell,
assign, transfer or otherwise dispose of any Charged Property; |
| (b) | procure
or permit Listco to issue any new shares; |
| (c) | appoint
any new director, or otherwise effect any change of director, of the Listco; or |
| (d) | otherwise
procure or permit a change of control over Listco or any Charged Property, |
except (a) as otherwise permitted
under clauses 15.5 and 15.22 of the Subscription Agreement or the provisions hereof; or (b) with the prior written consent of the
Investor.
7. | OPERATIONS BEFORE AND AFTER TRIGGERING
EVENT |
| 7.1.1 | The
Chargor shall, at all times prior to the giving of a notice in writing by the Investor to
the Chargor (a “Triggering Event”) that an Event of Default has occurred,
ensure that all dividends paid or made in respect of any Charged Property are applied in
accordance with the terms of the Subscription Agreement. |
| 7.1.2 | After
the occurrence of a Triggering Event, the Chargor shall promptly pay over and deliver to
the Investor for application in accordance with this Deed (and the Investor may apply in
accordance with this Deed) any and all dividends, distributions, interest and/or other monies
received and/or recovered by it in respect of all or any part of the Charged Property. |
| 7.1.3 | Any
and all dividends, distributions, interest and/or other monies received, recovered or paid/delivered
to the order of the Chargor (other than in cash) in respect of any or all of the Charged
Property shall be held by the Chargor subject to the security constituted by this Deed, provided
that if such receipt or recovery is made after the occurrence of a Triggering Event, the
Chargor shall promptly deliver such dividends, distributions, interest and/or other monies
to the Investor for application in accordance with this Deed. |
7.2 | Operation: Before Triggering Event |
Prior to the occurrence of a Triggering
Event, the Chargor shall be entitled to exercise all voting rights in relation to any or all of the Share Collateral provided that the
Chargor shall not exercise such voting rights in any manner that could give rise to, or otherwise permit or agree to, any (a) variation
of the rights attaching to or conferred by any of the Share Collateral or (b) any liability on the part of the Investor.
7.3 | Operation: After Triggering Event |
The Investor may, upon and/or after
the occurrence of a Triggering Event, at its discretion (in the name of the Chargor or otherwise and without any further consent or authority
from the Chargor):
| 7.3.1 | exercise
(or refrain from exercising) any voting rights in respect of the Charged Property; |
| 7.3.2 | apply
all dividends, distributions, interest and other monies arising from all or any of the Charged
Property in accordance with Clause 13 (Application of Monies); |
| 7.3.3 | have
the right to complete, date and put into effect any documents referred to in Clause 4.3 of
this Deed or transfer all or any of the Charged Property into the name of such nominee(s) of
the Investor as it shall think fit; and |
| 7.3.4 | cause
the conversion or dematerialisation of any of the Charged Property into scripless securities
and the deposit of such scripless securities into any account (whether in the name of the
Investor or otherwise); and |
| 7.3.5 | exercise
(or refrain from exercising) the powers and rights conferred on or exercisable by the legal
or beneficial owner of the Charged Property, including without limitation the right, in relation
to any company, corporation or entity whose shares, equity interests or other securities
are included in the Charged Property or any part thereof, to concur or participate in: |
| (a) | the
reconstruction, amalgamation, sale or other disposal of such company, corporation or entity
or any of its assets or undertaking (including without limitation the exchange, conversion
or reissue of any shares, equity interests or securities as a consequence thereof); |
| (b) | the
release, modification or variation of any rights or liabilities attaching to such shares,
equity interests or securities; and |
| (c) | the
exercise, renunciation or assignment of any right to subscribe for any shares, equity interests
or securities, |
in
each case in such manner and on such terms as the Investor may think fit, and the proceeds of any such action shall form part of the
Charged Property and may be applied by the Investor in accordance with Clause 13 (Application of Monies).
The Chargor shall pay when due all
calls or other payments which may be or become due in respect of any of the Charged Property, and in any case of default by the Chargor
in such payment, the Investor may, if it thinks fit, make such payment on behalf of the Chargor in which case any sums paid by the Investor
shall be reimbursed by the Chargor to the Investor on demand.
| 7.5.1 | The
Chargor shall not exercise any of its rights and powers in relation to any of the Charged
Property in any manner which, in the opinion of the Investor, would prejudice the value of,
or the ability of the Investor to realise, the security created by this Deed. |
| 7.5.2 | The
Investor shall not have any duty to ensure that any dividends, interest or other monies and
assets receivable in respect of the Charged Property are duly and punctually paid, received
or collected as and when the same become due and payable or to ensure that the correct amounts
(if any) are paid or received on or in respect of the Charged Property or to ensure the taking
up of any (or any offer of any) stocks, shares, rights, monies or other property paid, distributed,
accruing or offered at any time by way of redemption bonus, rights, preference, or otherwise
on or in respect of, any of the Charged Property. |
| 7.5.3 | The
Chargor shall not at any time during the Security Period exercise the right to nominate any
person other than the Investor or the nominee of the Investor to enjoy or exercise any right
relating to any of the Charged Property. |
8. | [INTENTIONALLY DELETED] |
9. | ENFORCEMENT
OF SECURITY |
Upon and after the occurrence of a
Triggering Event or if the Chargor requests the Investor to exercise any of its powers under this Deed, the security created by or pursuant
to this Deed is immediately enforceable and the Investor may, with prior notice to the Chargor or prior authorisation from any court,
in its absolute discretion:
| 9.1.1 | assume
control of, and to have it or its nominee registered as holder of legal title to, any Charged
Property; |
| 9.1.2 | sell,
exchange, grant options over, or otherwise dispose of, any Charged Property by any method,
at any time and on any terms, it thinks fit or to postpone doing of any of these things; |
| 9.1.3 | complete,
date and deliver any document delivered to it under this Deed; |
| 9.1.4 | borrow
or raise money either unsecured or on the security of the Charged Property (either in priority
to the Security conferred or intended to be conferred on the Investor by or pursuant to this
Deed or otherwise); |
| 9.1.5 | settle,
adjust, refer to arbitration, compromise and arrange any claims, accounts, disputes, questions
and demands relating to the Charged Property; |
| 9.1.6 | bring,
prosecute, enforce, defend and abandon actions, suits and proceedings in relation to the
Charged Property or any business of the Chargor; |
| 9.1.7 | redeem
any Security (whether or not having priority to the Security conferred or intended to be
conferred on the Investor by or pursuant to this Deed) over the Charged Property and to settle
the accounts of any person with an interest in the Charged Property; |
| 9.1.8 | exercise
and do (or permit the Chargor or any nominee of the Chargor to exercise and do) all such
rights and things as the Investor would be capable of exercising or doing if it were the
absolute beneficial owner of the Charged Property; |
| 9.1.9 | enforce
all or any part of such security (at the times, in the manner and on the terms it thinks
fit) and take possession of and hold or dispose of all or any part of the Charged Property;
and |
| 9.1.10 | whether
or not it has appointed a Receiver, exercise all or any of the powers, authorities and discretions
conferred by this Deed on any Receiver or otherwise conferred by law on mortgagees and/or
Receivers. |
9.2 | No Liability as Mortgagee in Possession |
Neither the Investor nor any Receiver
shall be liable to account as a mortgagee in possession in respect of all or any part of the Charged Property or be liable for any loss
upon realisation or for any neglect, default or omission in connection with the Charged Property to which a mortgagee or a mortgagee
in possession might otherwise be liable, unless in each case, directly caused by its wilful misconduct.
The
power of sale or other disposal conferred on the Investor and on any Receiver by this Deed shall arise (and the Secured Obligations shall
be deemed due and payable for that purpose) on execution of this Deed and shall be exercisable in accordance with Clause 9.1 (Enforcement)
and any applicable law or regulation.
Any restrictions imposed by law on
the power of sale or on the consolidation of security (including without limitation any restriction under paragraph 11 of the Fourth
Schedule to the Conveyancing and Property Ordinance (Cap. 219) of the Laws of Hong Kong) shall be excluded to the fullest extent permitted
by law.
11. | APPOINTMENT OF RECEIVER |
11.1 | Appointment
and Removal |
Upon and after the occurrence of a
Triggering Event or if requested to do so by the Chargor, the Investor may by deed or otherwise (acting through an authorised officer
of the Investor), without prior notice to the Chargor:
| 11.1.1 | appoint
one or more persons to be a Receiver over the whole or any part of the Charged Property; |
| 11.1.2 | appoint
two or more Receivers of separate parts of the Charged Property; |
| 11.1.3 | remove
(so far as it is lawfully able) any Receiver so appointed; and/or |
| 11.1.4 | appoint
another person(s) as an additional or replacement Receiver(s). |
11.2 | Capacity of Receivers |
Each
person appointed to be a Receiver pursuant to Clause 11.1 (Appointment and Removal) shall be:
| 11.2.1 | entitled
to act individually or together with any other person appointed or substituted as Receiver; |
| 11.2.2 | for
all purposes deemed to be the agent of the Chargor which shall be solely responsible for
his acts, defaults and liabilities and for the payment of his remuneration and no Receiver
shall at any time act as agent for the Investor; and |
| 11.2.3 | entitled
to remuneration for his services at a rate to be fixed by the Investor from time to time. |
If at any time there is more than one
Receiver, each Receiver may separately exercise all of the powers conferred by this Deed and to the exclusion of any other Receiver (unless
the document appointing such Receiver states otherwise).
11.4 | Statutory Powers of Appointment |
The powers of appointment of a Receiver
herein contained shall be in addition to all statutory and other powers of appointment of the Investor under applicable law and such
powers shall remain exercisable from time to time by the Investor in respect of all or any part of the Charged Property.
Every Receiver shall (subject to any
restrictions in the instrument appointing him but notwithstanding any winding-up or dissolution of the Chargor) have and be entitled
to exercise, in relation to the Charged Property (and any assets of the Chargor which, when got in, would be Charged Property) or that
part thereof in respect of which he was appointed, and as varied and extended by the provisions of this Deed (in the name of or on behalf
of the Chargor or in his own name and, in each case, at the cost of the Chargor):
| 12.1.1 | all
the powers conferred by the Conveyancing and Property Ordinance (Cap. 219) of the Laws of
Hong Kong on mortgagors and on mortgagees in possession and on receivers appointed under
that Ordinance (as if the Charged Property constituted property that is subject to that Ordinance
and as if such Receiver were appointed under that Ordinance), free from any limitation under
paragraph 11 of the Fourth Schedule to that Ordinance; |
| 12.1.2 | all
the powers and rights of an absolute owner and power to do or omit to do anything which the
Chargor itself could do or omit to do; and |
| 12.1.3 | the
power to do all things (including without limitation bringing or defending proceedings in
the name or on behalf of the Chargor) which seem to that Receiver to be incidental or conducive
to (a) any of the functions, powers, authorities or discretions conferred on or vested
in him or (b) the exercise of any Collateral Rights (including without limitation realisation
of all or any part of the Charged Property) or (c) bringing to his hands any assets
of the Chargor forming, or which, when got in, would be part of the Charged Property. |
12.2 | Additional Powers of Receiver |
In
addition to and without prejudice to the generality of the foregoing, every Receiver shall (subject to any limitations or restrictions
expressed in the instrument appointing him but notwithstanding any winding-up or dissolution of the Chargor) have the following powers
in relation to the Charged Property (and any assets of the Chargor which, when got in, would be part of the Charged Property) in respect
of which he was appointed (and every reference in this Clause 12.2 to the “Charged Property” shall be read
as a reference to that part of the Charged Property in respect of which such Receiver was appointed):
power to enter upon, take immediate possession
of, collect and get in the Charged Property including without limitation dividends and other income whether accrued before or after the
date of his appointment;
| 12.2.2 | Proceedings
and Claims |
power to bring, prosecute, enforce, defend
and abandon applications, claims, disputes, actions, suits and proceedings in connection with all or any part of the Charged Property
or this Deed in the name of the Chargor or in his own name and to submit to arbitration, negotiate, compromise and settle any such applications,
claims, disputes, actions, suits or proceedings;
power to carry on and manage, or concur
in the carrying on and management of or to appoint a manager of, the whole or any part of the Charged Property or any business relating
thereto in such manner as he shall in his absolute discretion think fit;
| 12.2.4 | Deal
with Charged Property |
power, in relation to the Charged Property
and each and every part thereof, to sell, transfer, convey, dispose of or concur in any of the foregoing by the Chargor or any other
receiver or manager of the Chargor (including without limitation to or in relation to the Investor) in such manner and generally on such
terms as he thinks fit;
power to purchase, lease, hire or otherwise
acquire any assets or rights of any description which he shall in his absolute discretion consider necessary or desirable for the carrying
on, improvement or realisation of the whole or any part of the Charged Property or otherwise for the benefit of the whole or any part
of the Charged Property;
power to promote, procure the formation
or otherwise acquire the share capital of, any body corporate with a view to such body corporate becoming a subsidiary of the Chargor
or otherwise and purchasing, leasing or otherwise acquiring an interest in the whole or any part of the Charged Property or carrying
on any business in succession to the Chargor or any subsidiary of the Chargor;
power to effect, maintain or renew indemnity
and other insurances and to obtain bonds and performance guarantees;
power to raise or borrow money from the
Investor or any other person to rank either in priority to the security constituted by this Deed or any part of it or otherwise and with
or without a mortgage or charge on the Charged Property or any part of it on such terms as he shall in his absolute discretion think
fit (and no person lending such money shall be concerned to see or enquire as to the propriety or purpose of the exercise of such power
or the application of money so raised or borrowed);
| 12.2.9 | Redemption
of Security |
power to redeem, discharge or compromise
any security whether or not having priority to the security constituted by this Deed or any part of it;
| 12.2.10 | Covenants,
Guarantees and Indemnities |
power to enter into bonds, covenants,
guarantees, commitments, indemnities and other obligations or liabilities as he shall think fit, to make all payments needed to effect,
maintain or satisfy such obligations or liabilities and to use the company seal of the Chargor; and
| 12.2.11 | Exercise
of Powers in Chargor’s Name |
power to exercise any or all of the above
powers on behalf of and in the name of the Chargor (notwithstanding any winding-up or dissolution of the Chargor) or on his own behalf.
In
making any sale or other disposal of all or any part of the Charged Property or any acquisition in the exercise of their respective powers
(including without limitation a disposal by a Receiver to any subsidiary of the Chargor or other body corporate as is referred to in
Clause 12.2.6), a Receiver or the Investor may accept or dispose of as, and by way of consideration for, such sale or other disposal
or acquisition, cash, shares, loan capital or other obligations, including without limitation consideration fluctuating according to
or dependent upon profit or turnover and consideration the amount whereof is to be determined by a third party. Any such consideration
may, if thought expedient by the Receiver or the Investor, be nil or may be payable or receivable in a lump sum or by instalments. Any
contract for any such sale, disposal or acquisition by the Receiver or the Investor may contain conditions excluding or restricting the
personal liability of the Receiver or the Investor.
12.4 | Relationship with Investor |
To the fullest extent allowed by law,
any right, power or discretion conferred by this Deed (either expressly or impliedly) or by law on a Receiver may after the Security
conferred or intended to be conferred on the Investor by or pursuant to this Deed becomes enforceable be exercised by the Investor in
relation to any Charged Property without first appointing a Receiver and notwithstanding the appointment of a Receiver.
Save
as otherwise expressly provided in this Deed, all moneys and/or non-cash recoveries and/or proceeds received or recovered by the Investor
or any Receiver pursuant to this Deed or the powers conferred by it shall (subject to the claims of any person having prior rights thereto
and subject to Clause 13.2 (Suspense Account)) be applied:
| 13.1.1 | first,
in the payment of the costs, charges and expenses incurred and payments made by any Receiver,
the payment of his remuneration and the discharge of any liabilities incurred by such Receiver
in, or incidental to, the exercise of any of his powers; |
| 13.1.2 | second,
be applied by the Investor as the Investor shall think fit in discharge of the Secured Obligations;
and |
| 13.1.3 | third,
following such payments, the remaining balance (if any) shall be paid to the Chargor for
its rights and interests or such other person as may be entitled thereto. |
All monies received, recovered or realised
under this Deed by the Investor or any Receiver or the powers conferred by it (including the proceeds of any conversion of currency)
may in its discretion be credited to and held in any suspense or impersonal account pending their application from time to time in or
towards the discharge of any of the Secured Obligations in accordance with Clause 13.1 (Order of Application).
13.3 | Application by Chargor |
Any
application under this Clause 13 shall override any application by the Chargor.
14. | RECEIPT AND PROTECTION OF PURCHASERS |
14.1 | Receipt
and Consideration |
The receipt of the Investor or any
Receiver shall be conclusive discharge to a purchaser of any part of the Charged Property from the Investor or such Receiver and in making
any sale or disposal of any part of the Charged Property or making any acquisition, the Investor or any Receiver may do so for such consideration,
in such manner and on such terms as it thinks fit.
14.2 | Protection of Purchasers |
No purchaser or other person dealing
with the Investor or any Receiver shall be bound to inquire whether the right of the Investor or such Receiver to exercise any of its
powers has arisen or become exercisable or be concerned with any propriety or regularity on the part of the Investor or such Receiver
in such dealings. No person (including a purchaser) dealing with the Investor or a Receiver or its or his agents will be obliged or concerned
to enquire:
| (a) | whether
the Secured Obligations have become payable; |
| (b) | whether
any power which the Investor or a Receiver is purporting to exercise has become exercisable
or is being properly exercised; |
| (c) | whether
any money remains due under the Transaction Documents; or |
| (d) | how
any money paid to the Investor or to that Receiver is to be applied. |
The protection given to purchasers
from a mortgagee in sections 52 and 55 of the Conveyancing and Property Ordinance (Cap. 219) of the Laws of Hong Kong shall apply mutatis
mutandis to purchaser(s) and other person(s) dealing with the Investor or any Receiver.
15.1 | Appointment
and Powers |
The Chargor by way of security irrevocably
(within the meaning of Section 4 of the Powers of Attorney Ordinance (Cap. 31) of the Laws of Hong Kong) appoints the Investor and
any Receiver severally to be its attorney and in its name, on its behalf to execute, deliver and perfect all documents and do all things
which the Investor or such Receiver may consider to be necessary for:
| 15.1.1 | carrying
out any obligation imposed on the Chargor by this Deed or any other agreement binding on
the Chargor to which the Investor is party (including without limitation the execution and
delivery of any deeds, charges, assignments or other security and any transfers of the Charged
Property or any part thereof); and |
| 15.1.2 | enabling
the Investor and any Receiver to exercise, or delegate the exercise of, any of the rights,
powers and authorities conferred on them by or pursuant to this Deed or by law (including,
without limitation, upon or after the occurrence of a Triggering Event, the exercise of any
right of a legal or beneficial owner of the Charged Property or any part thereof). |
The Chargor shall ratify and confirm
all things done and all documents executed by any attorney in the lawful exercise or purported exercise of all or any of his powers pursuant
to this Deed.
The Chargor represents and warrants
to the Investor that:
| 16.1.1 | it
is a company with limited liability, duly incorporated, validly existing and in good standing
under the laws of the British Virgin Islands; |
| 16.1.2 | subject
to Legal Reservations, each of the obligations expressed to be assumed by it in this Deed
are legal, valid, binding and enforceable obligation, and this Deed creates the security
interests which it purports to create and such security interests are valid and effective; |
| 16.1.3 | the
entry into and performance by it of, and the transactions contemplated by, this Deed do not
and will not: |
| (a) | conflict
with any law or regulation applicable to it; |
| (b) | conflict
with its constitutional documents; |
| (c) | conflict
with any agreement or instrument binding upon it or any of its assets; or |
| (d) | result
in the existence of or oblige it to create any security over all or any of its assets (other
than the security constituted pursuant to this Deed); |
| 16.1.4 | it
has the power to enter into, perform and deliver, and has taken all necessary action to authorise
its entry into, performance and delivery of, this Deed; |
| 16.1.5 | no
limit on its powers will be exceeded as a result of the grant of security contemplated by
this Deed; |
| 16.1.6 | all
Approvals required or desirable: |
| (a) | to
enable it lawfully to enter into, exercise its rights and comply with its obligations in
this Deed; |
| (b) | to
make this Deed admissible in evidence in its jurisdiction of incorporation and/or Hong Kong;
and/or |
| (c) | to
enable it to create the security expressed to be created by it pursuant to this Deed and
to ensure that such security has the priority and ranking it is expressed to have, |
have been obtained or effected and are
in full force and effect;
| 16.1.7 | subject
to Legal Reservations, the choice of the laws of Hong Kong as the governing law of this Deed
will be recognised and enforced in its jurisdiction of incorporation and in the courts of
Hong Kong; |
| 16.1.8 | subject
to Legal Reservations, any judgment obtained in the courts of Hong Kong in relation to this
Deed will be recognised and enforced in its jurisdiction of incorporation and/or Hong Kong; |
| 16.1.9 | save
and except for those as set out in Clause 4, under the law of its jurisdiction of incorporation
it is not necessary that this Deed be filed, recorded or enrolled with any court or other
authority in that jurisdiction or that any stamp, registration or similar tax be paid on
or in relation to this Deed; |
| 16.1.10 | all
consents necessary to enable any asset that is expressed to be subject to any security under
this Deed to be the subject of effective security under this Deed have been obtained and
are in full force and effect; |
| 16.1.11 | it
is, and will be, the sole beneficial owner of the Charged Property free from security (other
than the security constituted pursuant to this Deed) and this Deed creates in favour of the
Investor first ranking Security Interest over the Charged Property; |
| 16.1.12 | it
has not sold or otherwise disposed of, or created, granted or permitted to subsist any security
over, all or any of its right, title and interest in the Charged Property (other than the
security constituted pursuant to this Deed and other than as expressly permitted under this
Deed); |
| 16.1.13 | the
Share Collateral have been validly issued and allotted by the Listco and are fully paid up
and there are no monies or liabilities payable or outstanding by the Chargor in relation
to any of the Shares; |
| 16.1.14 | it
is solvent and: |
| (a) | no
petition has been presented, no order has been made, or resolution passed for the winding
up of the Chargor or for the appointment of a liquidator or provisional liquidator to the
Chargor; |
| (b) | no
administrator has been appointed in relation to the Chargor and to the best information and
knowledge of the Chargor, no notice has been given or filed with the court of an intention
to appoint an administrator and no petition or application has been presented or order has
been made for the appointment of an administrator in respect of the Chargor; |
| (c) | no
receiver or administrative receiver or manager has been appointed, to the best information
and knowledge of the Chargor, no notice has been given of the appointment of any such person,
over the whole or part of the business or assets of the Chargor; |
| (d) | the
Chargor has not proposed or agreed to a composition, compromise, assignment or arrangement
with any of its creditors; and |
| (e) | to
the best information and knowledge of the Chargor, the Chargor is not subject to or threatened
by any other procedures or steps which are analogous to those set out above. |
| 16.1.15 | no
Event of Default is continuing or might reasonably be expected to result from the entry into,
the performance of, or any transaction contemplated by this Deed; |
| 16.1.16 | to
the best of the knowledge and information of the Chargor, no other event or circumstance
is outstanding which constitutes (or, with the expiry of a grace period, the giving of notice,
the making of any determination or any combination of any of the foregoing, would constitute)
a default or termination event (however described) under any other agreement or instrument
which is binding on it or to which its assets are subject; and |
| 16.1.17 | to
the best information and knowledge of the Chargor, no litigation, arbitration, investigation
or administrative proceedings of or before any court, arbitral body or agency been started
or threatened, or is pending, against it or its assets which may have a Material Adverse
Effect. |
Each of the representations and warranties
above shall be deemed to be repeated by the Chargor on each day of the Security Period by reference to the facts and circumstances existing
at the date on which such representation or warranty is deemed to be made or repeated.
| 17.1 | The
Chargor shall not and shall procure that there shall not be any sale, transfer or disposal
of any Shares or Charged Property or any interest therein, without the prior written consent
of the Investor. |
| 17.2 | The
Chargor hereby covenants during the Security Period it will remain the legal and the beneficial
owner of the Charged Property (subject only to the security created by this Deed) and that
it shall not: |
| 17.2.1 | create
or permit to subsist any security (other than that created by this Deed) on or in respect
of the whole of any part of the Charged Property or any of its interest therein; or |
| 17.2.2 | sell,
lease, assign, lend, dispose of, transfer or otherwise deal with any of its interest in the
Charged Property (other than pursuant to this Deed) and in any such case, without the prior
written consent of the Investor; or |
| 17.2.3 | do,
or permit to be done, any act or thing that would or might depreciate, jeopardise or otherwise
prejudice the security held by the Investor, or diminish the value of any of the Charged
Property or the effectiveness of the security created by this Deed. The Chargor shall, promptly
on becoming aware, notify the Investor in writing of any representation or warranty set out
in Clause 16.1 of this Deed which is incorrect or misleading in any material respect when
made or deemed to be repeated and any breach of any covenant set out in this Deed. |
| 17.3 | The
Chargor shall deliver to the Investor as soon as reasonably practicable immediately upon
receipt by the Chargor copies of all notices of general meetings, proposed shareholder resolutions
of the Listco, financial statements and all other materials distributed to, or requiring
action by, shareholders of the Listco from time to time and all other materials and information
distributed by the Listco to, or requiring action by, the shareholders of the Listco and
such other information concerning the Listco (that the Chargor as a shareholder of the Listco
would have known) as the Investor shall from time to time request. |
| 17.4 | The
Chargor shall remain liable to perform all the obligations assumed by it in relation to the
Charged Property and the Investor shall be under no obligation of any kind whatsoever in
respect thereof or be under any liability whatsoever in the event of any failure by the Chargor
to perform its obligations in respect thereof. |
| 17.5 | The
Chargor shall not take, or allow the taking of, any action on its behalf which may result
in the rights attaching to, or conferred by, all or any of the Charged Property being altered. |
| 17.6 | The
Chargor shall not waive, release, settle, compromise, abandon or set-off any claim or the
liability of any person in respect of the Related Rights, or do or omit to do any other act
or thing whereby the recovery in full of the Related Rights as and when they become payable
may be impeded. |
18. | EFFECTIVENESS OF SECURITY |
The security created by or pursuant
to this Deed shall remain in full force and effect as a continuing security for the Secured Obligations unless and until discharged by
the Investor. No part of the security from time to time intended to be constituted by this Deed will be considered satisfied or discharged
by any intermediate payment, discharge or satisfaction of the whole or any part of the Secured Obligations.
The security created by this Deed and
the Collateral Rights shall be cumulative, in addition to and independent of every other security which the Investor may at any time
hold for any or all of the Secured Obligations or any rights, powers and remedies provided by law. No prior security held by the Investor
over the whole or any part of the Charged Property shall merge into the security constituted by this Deed.
18.3 | Chargor’s Obligations |
None
of the obligations of the Chargor under this Deed or the Collateral Rights shall be affected by an act, omission, matter, thing or event
which, but for this Clause 18.3, would reduce, release or prejudice any of its obligations under this Deed including (without
limitation and whether or not known to it or the Investor):
| 18.3.1 | the
winding-up, dissolution, administration, reorganisation, death, insolvency, incapacity or
bankruptcy of the Chargor or any other person or any change in its status, function, control
or ownership; |
| 18.3.2 | any
of the obligations of the Chargor or any other person under any Transaction Document being
or becoming illegal, invalid, unenforceable or ineffective in any respect; |
| 18.3.3 | any
time, waiver or consent granted to, or composition with, the Chargor or any other person; |
| 18.3.4 | the
release of the Chargor or any other person under the terms of any composition or arrangement
with any creditor of the Chargor or any other person; |
| 18.3.5 | the
taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to
perfect, take up or enforce, any rights against, or security over assets of, the Chargor
or other person or any non-presentation or non-observance of any formality or other requirement
in respect of any instrument or any failure to realise the full value of any security; |
| 18.3.6 | any
incapacity or lack of power, authority or legal personality of or dissolution or change in
the members or status of the Chargor or any other person; |
| 18.3.7 | any
amendment, novation, supplement, extension (whether of maturity or otherwise) or restatement
(in each case however fundamental and of whatsoever nature, and whether or not more onerous)
or replacement of a Transaction Document or any other document or security or of the Secured
Obligations; |
| 18.3.8 | any
unenforceability, illegality or invalidity of any obligation of any person under any Transaction
Document or any other document or security; |
| 18.3.9 | any
insolvency or similar proceedings; |
| 18.3.10 | any
claims or set-off right that the Chargor may have; or |
| 18.3.11 | any
law, regulation or decree or order of any jurisdiction affecting the Chargor. |
Without
prejudice to the generality of Clause 18.3(Chargor’s Obligations), the Chargor expressly confirms that it intends
that the security created under this Deed, and the Collateral Rights, shall extend from time to time to any (however fundamental and
of whatsoever nature, and whether or not more onerous) variation, increase, extension or addition of or to any of the Transaction Documents
or any other security relating to any Transaction Document.
| (a) | No
failure on the part of the Investor to exercise, or any delay on its part in exercising,
any Collateral Right shall operate as a waiver thereof, nor shall any single or partial exercise
of any Collateral Right preclude any further or other exercise of that or any other Collateral
Right. |
| (b) | No
election by the Investor or any Receiver to affirm this Deed or to waive any Collateral Rights
shall be effective unless it is in writing. |
| (c) | The
Collateral Rights are cumulative and not exclusive of the rights of the Investor or any Receiver
under the general law. No single or partial exercise of any Collateral Right shall preclude
any further or other exercise of that or any other Collateral Right. |
The Chargor waives any right it may
have of first requiring the Investor (or any trustee or agent on its behalf) to proceed against or enforce any other right or security
or claim payment from any person or file any proof or claim in any insolvency, administration, winding-up or liquidation proceedings
relative to any other person before claiming from the Chargor under this Deed.
None of the Investor, its nominee(s) or
any Receiver shall be liable by reason of (a) taking any action permitted by this Deed or (b) any neglect or default in connection
with all or any part of the Charged Property or (c) taking possession of or realising all or any part of the Charged Property, except
in the case of wilful default upon its part (as finally judicially determined).
If, at any time, any provision of this
Deed is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity
or enforceability of the remaining provisions of this Deed under such laws nor of such provision under the laws of any other jurisdiction
shall in any way be affected or impaired thereby and, if any part of the security intended to be created by or pursuant to this Deed
is invalid, unenforceable or ineffective for any reason, that shall not affect or impair any other part of that security.
The Investor shall not be obliged to
make any demand of or enforce any rights or claim against the Chargor or any other person, to take any action or obtain judgment in any
court against the Chargor or any other person or to make or file any proof or claim in a liquidation, bankruptcy or insolvency of the
Chargor or any other person or to enforce or seek to enforce any other security in respect of any or all of the Secured Obligations before
exercising any Collateral Right.
Until the time when (i) all Secured
Obligations have been irrevocably discharged in full and (ii) all amounts which may be or become payable by the Chargor and the
Chargor under or in connection with the Transaction Documents have been irrevocably paid in full, the Chargor will not (unless the Investor
otherwise directs) exercise any rights which it may have by reason of performance by it of its obligations under this Deed:
| 18.10.1 | to
be indemnified by the Chargor; |
| 18.10.2 | to
claim any contribution from any guarantor (if any) of the Chargor’s obligations under
any or all of the Transaction Documents; and/or |
| 18.10.3 | to
take the benefit (in whole or in part and whether by way of subrogation or otherwise) of
any rights of the Investor under the Transaction Documents or of any other guarantee or security
taken pursuant to, or in connection with, the Transaction Documents by the Investor. |
18.11 | Settlement conditional |
Any settlement, discharge or release
hereunder in relation to the Chargor or all or any part of the Charged Property shall be conditional upon no security or payment by the
Chargor to the Investor being avoided or reduced by virtue of any bankruptcy, insolvency, liquidation or similar laws of general application
or any similar event or for any other reason and shall in the event of any such avoidance or reduction or similar event be void and the
liability of the Chargor under this Deed and the Security created by this Deed shall continue as if such payment, settlement, discharge
or release had not occurred.
19.1 | Redemption
of Security |
Upon the time when (i) all Secured
Obligations have been irrevocably discharged in full, and (ii) all amounts which may be or become payable by the Chargor under or
in connection with the Transaction Documents have been irrevocably paid in full, the Investor
shall, at the request (with reasonable notice) and cost of the Chargor, as soon as reasonably practicable, release and cancel the security
constituted by this Deed on the relevant Share Collateral or any balance paid by the Chargor under Clause 3.2 (Fixed Charge)
and procure the reassignment to the Chargor of the property and assets assigned to the Investor and the return to the Chargor of
the certificates and documents delivered to the Investor pursuant to this Deed (to the extent not otherwise sold, assigned or otherwise
disposed of or applied in accordance with this Deed), in each case subject to Clauses 19.2 (Avoidance of Payments) and 18.11 (Settlement
conditional) and without recourse to, or any representation or warranty by, the Investor or any of its nominees.
19.2 | Avoidance of Payments |
If the Investor reasonably considers
that any amount paid or credited to or recovered by the Investor from the Chargor is capable of being avoided or reduced by virtue of
any bankruptcy, insolvency, liquidation or similar laws, the liability of the Chargor under this Deed and the security constituted by
this Deed shall continue and such amount shall not be considered to have been irrevocably paid.
20. | SUBSEQUENT AND PRIOR SECURITY INTERESTS |
20.1 | Subsequent
security interests |
If the Investor (acting in its capacity
as chargee or otherwise) at any time receives or is deemed to have received notice of any subsequent security or other interest affecting
all or any part of the Charged Property or any assignment or transfer of the Charged Property which is prohibited by the terms of this
Deed or the Transaction Documents, all payments thereafter by or on behalf of the Chargor to the Investor shall be treated as having
been credited to a new account of the Investor and not as having been applied in reduction of the Secured Obligations as at the time
when (or at any time after) the Investor received such notice of such subsequent security or other interest or such assignment or transfer.
20.2 | Prior security interests |
In the event of any action, proceeding
or step being taken to exercise any powers or remedies conferred by any prior ranking security or upon the exercise by the Investor or
any Receiver of any power of sale under this Deed or any Collateral Right, the Investor may redeem any prior ranking security over or
affecting any Charged Property or procure the transfer of any such prior ranking security to itself. The Investor may settle and agree
the accounts of the beneficiary of any such prior security and any accounts so settled and agreed will be conclusive and binding on the
Chargor. All principal, interest, costs, charges, expenses and/or other amounts relating to and/or incidental to any such redemption
or transfer shall be paid by the Chargor to the Investor upon demand.
21. | CURRENCY CONVERSION AND INDEMNITY |
For the purpose of or pending the discharge
of any of the Secured Obligations the Investor may convert any money received, recovered or realised or subject to application by it
under this Deed from one currency to another, as the Investor may think fit, and any such conversion shall be effected at the Investor’s
spot rate of exchange (or, if no such spot rate of exchange is quoted by the Investor, such other rate of exchange as may be available
to the Investor) for the time being for obtaining such other currency with such first-mentioned currency.
If any sum (a “Sum”)
owing by the Chargor under this Deed or any order or judgment given or made in relation to this Deed has to be converted from the currency
(the “First Currency”) in which such Sum is payable into another currency (the “Second Currency”)
for the purpose of:
| 21.2.1 | making
or filing a claim or proof against the Chargor; |
| 21.2.2 | obtaining
an order or judgment in any court or other tribunal; |
| 21.2.3 | enforcing
any order or judgment given or made in relation to this Deed; or |
| 21.2.4 | applying
the Sum in satisfaction of any of the Secured Obligations, |
the Chargor shall indemnify the Investor
from and against any loss suffered or incurred as a result of any discrepancy between (a) the rate of exchange used for such purpose
to convert such Sum from the First Currency into the Second Currency and (b) the rate or rates of exchange available to the Investor
at the time of such receipt or recovery of such Sum.
22. | COSTS, EXPENSES AND INDEMNITY |
The Chargor shall, on demand of the
Investor, reimburse the Investor on a full indemnity basis for all costs and expenses (including legal fees and any value added tax)
incurred by the Investor in connection with (a) the execution of this Deed or otherwise in relation to this Deed, including but
not limited to costs and expenses relating to any amendment of this Deed, (b) the perfection or enforcement of the security constituted
by this Deed, (c) the exercise of any Collateral Right, together with interest from the date such costs and expenses were incurred
to the date of reimbursement of the same by the Chargor, and/or (d) the release of the security constituted by this Deed.
The Chargor shall pay all stamp, registration
and other Taxation to which this Deed, the security contemplated in this Deed and/or any judgment given in connection with this Deed
is, or at any time may be, subject and shall, from time to time, indemnify the Investor on demand against any liabilities, costs, claims
and/or expenses resulting from any failure to pay or delay in paying any such Tax.
The Chargor shall, notwithstanding
any release or discharge of all or any part of the security constituted by this Deed, indemnify the Investor, its agents, attorneys and
any Receiver against any action, proceeding, claims, losses, liabilities and costs which it may sustain as a consequence of any breach
by the Chargor of the provisions of this Deed, the exercise or purported exercise of any of the rights and powers conferred on any of
them by this Deed or otherwise relating to the Charged Property or any part thereof.
23. | PAYMENTS FREE OF DEDUCTION |
All payments to be made to the Investor
under this Deed shall be made free and clear of and without deduction for or on account of any Taxation unless the Chargor is required
to make such payment subject to the deduction or withholding of any Taxation, in which case the sum payable by the Chargor in respect
of which such deduction or withholding is required to be made shall be increased to the extent necessary to ensure that, after the making
of such deduction or withholding, the person on account of whose liability to tax such deduction or withholding has been made receives
and retains (free from any liability in respect of any such deduction or withholding) a net sum equal to the sum which it would have
received and so retained had no such deduction or withholding been made or required to be made.
23.2 | No set-off or counterclaim |
All payments to be made by the Chargor
under this Deed shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.
24. | DISCRETION AND DELEGATION |
Any liberty or power which may be exercised
or any determination which may be made under this Deed by the Investor or any Receiver may, subject to the applicable terms and conditions
of, as the case may be, the Transaction Documents, be exercised or made in its absolute and unfettered discretion without any obligation
to give reasons.
Each
of the Investor and any Receiver shall have full power to delegate (either generally or specifically) the powers, authorities and discretions
conferred on it by this Deed (including without limitation the power of attorney under Clause 15 (Power of Attorney)) on
such terms and conditions as it shall see fit which delegation shall not preclude any subsequent exercise, any subsequent delegation
or any revocation of such power, authority or discretion by the Investor or any Receiver.
In acting as Investor and chargee,
the Investor shall have the benefit of all indemnities, protections and rights on its part set out in the Transaction Documents, as if
set out fully herein
The Investor may set off any matured
obligation due from the Chargor under any or all of the Transaction Documents (to the extent beneficially owned by the Investor) against
any matured obligation owed by the Investor to the Chargor, regardless of the place of payment, booking branch or currency of either
obligation. If such obligations are in different currencies, the Investor may convert either obligation at a market rate of exchange
in its usual course of business for the purpose of such set-off.
This Deed shall be binding upon and
enure to the benefit of each party hereto and its and/or any subsequent successors and permitted assigns and transferees. Without prejudice
to the foregoing, this Deed shall remain in effect despite any amalgamation or merger (however effected) relating to the Investor; and
references to the Investor herein shall be deemed to include any person who, under the laws of its jurisdiction of incorporation or domicile,
has assumed the rights and obligations of the Investor under this Deed or to which, under such laws, those rights and obligations have
been transferred.
26.2 | No Assignment or Transfer by Chargor |
The Chargor may not assign or transfer
any or all of its rights (if any) and/or obligations under this Deed.
26.3 | Assignment or Transfer by Investor |
The Investor may assign or transfer
any or all of its rights (if any) and/or obligations under this Deed.
The Investor shall be entitled to disclose
such information concerning the Chargor or any other person and this Deed as the Investor considers appropriate to any actual or proposed
direct or indirect successor or to any person to whom information may be required to be disclosed by applicable law.
27. | AMENDMENTS AND WAIVERS |
27.1 | Any
provision of this Deed may be amended or waived only by agreement in writing between the
Chargor and the Investor. No third party’s signature is required for any amendment. |
27.2 | No
failure on the part of the Investor to exercise, or delay on its part in exercising, any
or all of its rights hereunder shall operate as a waiver thereof or constitute an election
to affirm this Deed. No election to affirm this Deed on the part of the Investor shall be
effective unless it is in writing. No single or partial exercise of any such right or remedy
shall preclude any further or other exercise of such or any other right or remedy. |
28.1 | Any
notice, claim or demand in connection with this Deed shall be in writing, in English language,
and marked “IMPORTANT LEGAL NOTICE” (each a “Notice”), and
shall be delivered or sent to the recipient at its/his email address, or address (where applicable)
listed below, or any other email address or address notified to the sender by the recipient
for the purposes of this Instrument: |
To
the Chargor: |
Fast Horse Technology
Limited
Address: 10 Jiuxianqiao
East Road, Chaoyang District, Beijing 100016
Email:
Josh.Chen@vnet.com
Attention: Cheng Sheng |
|
|
To the
Investor: |
Shining Rich Holdings
Limited 耀富控股有限公司
Email:
workforpapper@163.com
Attention: Fang Li / Tong
Lin |
28.2 | If
any Investor that is a natural Person dies, until the Party giving a Notice has received
notice in writing of the grant of probate of his will or letters of administration of his
estate (or equivalent), any Notice so given shall be as effectual as if he was still living. |
28.3 | Without
prejudice to Clause 28.2, any Notice shall be deemed to have been served: (a) if served
by hand, when delivered and proof of delivery is obtained by the delivery party, (b) if
served by overnight courier, on the next Business Day, or (c) if sent by email, only
when received in legible form by at least one of the relevant email addresses of the person(s) to
whom the communication is made. Any Notice received on a Sunday or public holiday shall be
deemed to be received on the next Business Day. |
This Deed may be executed in any number
of counterparts, all of which taken together shall constitute one and the same instrument.
30.1 | A
Person who is not a Party has no right under the Contracts (Rights of Third Parties) Ordinance
(Chapter 623 of the laws of Hong Kong) to enforce or to enjoy the benefit of any term of
this Deed. |
30.2 | Notwithstanding
any term of this Deed, the consent of any person who is not a Party is not required to rescind
or vary this Deed at any time. |
This Deed shall be governed by and
shall be construed in accordance with Hong Kong law.
32.1 | With
respect to any dispute, controversy or claim arising out of or relating to this Deed, including
the existence, validity, performance, interpretation, construction, breach or termination
thereof or the consequences of its nullity (each a “Dispute”), the Parties
hereby irrevocably submit to the exclusive jurisdiction of the Hong Kong courts. |
32.2 | The
parties hereto agree that the courts of Hong Kong are the most appropriate and convenient
courts to settle Disputes between them and, accordingly, that they will not argue to the
contrary. |
32.3 | This
Clause 32 is for the benefit of the Investor only. As a result and notwithstanding Clause
32.2, nothing herein shall prevent the Investor from taking proceedings relating to a Dispute
in any other courts with jurisdiction. To the extent allowed by law the Investor may take
concurrent proceedings in any number of jurisdictions. |
32.4 | The
Chargor hereby waives with respect of this Deed any right to claim sovereign immunity from
jurisdiction or execution or any similar defence, and irrevocably consents to the giving
of any relief or the issue of any process, including, without limitation, the making, enforcement
or execution against any property whatsoever (irrespective of its use or intended use) of
any order of judgment made or given in connection with any proceedings arising out of or
in connection with this Deed. |
33.1 | Without
prejudice to any other mode of service allowed under any relevant law, the Chargor irrevocably
appoints VNET Group Limited of 37/F., Tower 1 Metroplaza, Hing Fong Road, Kwai Fong, Hong
Kong as its agent under this Deed for service of process in any proceedings before the Hong
Kong courts in connection with this Deed. |
33.2 | If
any person appointed as process agent under this Clause is unable for any reason to so act,
the Chargor must immediately (and in any event within five (5) days of the event taking
place) appoint another agent on terms acceptable to the Investor. Failing this, the Investor
may appoint another process agent for this purpose. |
33.3 | The
Chargor agrees that failure by a process agent to notify it of any process will not invalidate
the relevant proceedings. |
33.4 | This
Clause does not affect any other method of service allowed by law. |
SCHEDULE 1
FORM OF INSTRUMENT
OF TRANSFER
Instrument of transfer
The undersigned,
Fast Horse Technology Limited (the “Transferor”) does hereby transfer to:
(the “Transferee”),
Class
ordinary shares standing in our name in the undertaking called
VNET
Group, Inc. (世纪互联集团)
to hold
the same unto the Transferee.
Signed
by the Transferor:
For and
on behalf of
Fast
Horse Technology Limited
Signed
by the Transferee: For and on behalf of
[Name
of Transferee]
SCHEDULE 2
FORM OF ACKNOWLEDGMENT
FROM NOMINEE
To: | Shining
Rich Holdings Limited 耀富控股有限公司 (the
“Investor”, which expression shall include its successors, assigns and
transferees) |
Copy to:
Fast Horse Technology Limited of [address] Dear Sirs,
At the
request of Fast Horse Technology Limited, I/we hereby:
1. | warrant
and confirm that I am/we are the registered holder(s) of [insert number and description
of relevant Shares] in VNET Group, Inc. (世纪互联集团)
(the “Shares”) and am/are holding the Shares as nominee for and on behalf
of the Chargor; |
2. | acknowledge
that the Chargor has, pursuant to a deed of Charge over Shares (as amended and/or supplemented
from time to time, the “Deed”) dated
2024 by the Chargor in favour of the Investor, charged and/or granted security over
the Shares in favour of you as security upon the terms and conditions specified therein; |
3. | undertake
that [I]/[we] shall, upon and at all times after the earlier of being requested by you to
do so or the enforcement of the security constituted by the Deed in respect of the Shares,
hold the Shares on trust for you (or any other person whom you may nominate); |
4. | undertake
that [I]/[we] shall, upon being requested by you to do so, transfer the legal title in the
Shares to you (or any other person whom you may nominate) and do all acts and execute all
documents as may be necessary and/or as you may require for such purpose; and |
5. | irrevocably
and unconditionally appoint each of you and any Receiver (as defined in the Deed) severally
to be [my]/[our] attorney on the terms of Clause 15 (Power of Attorney) of the Deed
(applying mutatis mutandis) as if [I was]/[we were] the Chargor, and undertake to
execute such further powers of attorney in such form as you may reasonably require from time
to time. |
This acknowledgment
is governed by and shall be construed in accordance with the laws of Hong Kong.
Dated:
IN WITNESS
WHEREOF this deed has been executed the day and year above written.
[in
the case where the relevant nominee is incorporated in Hong Kong or a company incorporated outside Hong Kong which has a company seal]
THE COMMON SEAL of
[name of nominee]
was hereunto affixed in
the presence of: |
)
)
) |
|
[Director][Authorised Signatory]
OR
[in the case where the
relevant nominee is a company incorporated outside of Hong Kong and does not have any company seal]
SIGNED, SEALED
and DELIVERED |
) |
|
as a DEED by |
) |
|
[name of relevant
authorised signatory] |
) |
|
for and on behalf of |
) |
|
[name of relevant
nominee] |
) |
|
in the presence of |
) |
|
Signature of witness: |
|
Name of witness: |
|
Title: |
|
Address of witness: |
|
|
|
|
|
Occupation of witness: |
|
OR
[in the case where the
relevant nominee is an individual]
SIGNED, SEALED
and DELIVERED |
) |
|
as a DEED by |
) |
|
[name of relevant
nominee] |
) |
|
in the presence of |
) |
|
Signature of witness: |
|
Name of witness: |
|
Title: |
|
Address of witness: |
|
|
|
|
|
Occupation of witness: |
|
SCHEDULE 3
FORM OF IRREVOCABLE APPOINTMENT OF PROXY
AND POWER OF ATTORNEY
VNET
Group, Inc. (世纪互联集团)
We,
Fast Horse Technology Limited, hereby irrevocably appoint Shining Rich Holdings Limited 耀富控股有限公司
and its successors, permitted transferees and permitted assigns as our:
| 1. | proxy
to vote at meetings of the members of VNET Group, Inc. (世纪互联集团)
(the “Company”) in respect of the___________________ordinary shares in
the Company, represented by share certificate number___________________(the “Shares”),
which are issued and/or registered in our name; and |
| 2. | duly
authorised representative and duly appointed attorney-in-fact to sign resolutions in writing
of the Company in respect of the Shares. |
The
Shares have been mortgaged and/or charged to Shining Rich Holdings Limited 耀富控股有限公司
pursuant to a charge over shares dated ___________________2024 between Fast Horse Technology Limited
as chargor and Shining Rich Holdings Limited 耀富控股有限公司
as chargee.
This
proxy and power of attorney are irrevocable by reason of being coupled with the interest of Shining Rich Holdings Limited 耀富控股有限公司and
its successors, permitted transferees and permitted assigns as chargee of the Shares.
(The remainder of this page is
intentionally left blank)
This
Deed has been executed as a deed this_________day of___________________2024
EXECUTED
and DELIVERED
as a deed by
|
)
)
) |
|
, its authorised director for and on behalf of |
) |
|
Fast Horse Technology LIMITED |
) |
|
|
) |
Signature of director |
|
) |
Name: |
SCHEDULE 4
FORM OF NOTICE OF CHARGE
_____________________2024
VNET
Group, Inc. (世纪互联集团) (the “Company”)
c/o Maples Corporate Services
Limited
PO Box 309, Ugland House
Grand Cayman, KY1-1104
Cayman Islands
Dear Sirs
CHARGE OVER SHARES
We hereby notify you that
pursuant to a charge over shares (the “Charge over Shares”) dated _____________________2024
between Fast Horse Technology Limited as chargor (the “Chargor”) and Shining
Rich Holdings Limited 耀富控股有限公司 as
chargee (the “Investor”, which expression shall include its successors, permitted transferees and permitted assigns)
(a copy of which is attached for your records), the Chargor has, inter alia, charged, by way of a first fixed charge,_____________________class
ordinary shares in the Company owned by the Chargor, represented by share certificate[s] number___ [and ___ respectively] (the “Charged
Shares”) and charged, by way of a first fixed charge, all of all rights, benefits and advantages now or at any time in the
future deriving from or incidental to any of the Charged Shares including:
(a) | any
proceeds of sale, transfer, redemption, substitution, exchange, conversion or other disposal,
or agreement for sale, transfer, redemption, substitution, exchange, conversion or other
disposal, of; |
(b) | any moneys or proceeds paid or
payable (including interest and dividends) deriving from; |
(c) | any rights (including to securities),
claims, guarantees, indemnities, security or covenants for title in relation to; |
(d) | any awards or judgments in favour
of the Charged Property (as defined in the Charge over Shares) in relation to; |
(e) | any certificate or other evidence
of title to; |
(f) | all other rights, powers, benefits
and privileges, present and future, which the Chargor may have in respect of; and |
| (g) | any
other assets or property deriving from, |
the Charged Shares from time to time.
[We
hereby notify you that additional _____________________ class ___ ordinary shares in the Company
represented by share certificate[s] number _____[and __________respectively] owned by the
Chargor shall become subject to the security interests created by the Charge over Shares.]
We request that you include
the following annotation in the Register of Members of the Company and provide the Investor with a certified copy of an extract of the
annotated Register of Members:
“The
__________________class ________ordinary shares issued
and registered in the name of Fast Horse Technology Limited represented by share certificate[s] number [and ] are charged in favour of
Shining Rich Holdings Limited 耀富控股有限公司
pursuant to a charge over shares dated [Date] 2024, as amended from time to time. The date that this annotation is made
is [Date].”
The terms of the Charge
over Shares contemplate that additional class ordinary shares in the Company owned by the Chargor may become subject to the security
interests created by the Charge over Shares. If any such event occurs, we will issue a further notice to specifying the additional class
ordinary shares in the Company owned by the Chargor which are then subject to the security interests created by the Charge over Shares
and request that an additional annotation is made in the Register of Members.
We request that you, promptly
and without delay, take any action necessary in order to effect a transfer of the Charged Shares made pursuant to the terms of the Charge
over Shares following notice from the Investor including but not limited to passing any board resolutions and giving instructions to
your Cayman Islands registered office provider or your share registrar that maintains your register of members.
This notice is governed by
the laws of Hong Kong. Yours faithfully,
Authorised Signatory
For and on behalf of
Fast Horse Technology Limited
SCHEDULE 5
INSTRUMENT OF TRANSFER
The undersigned,
[shareholder name] (the “Transferor”), does hereby transfer to Citi (Nominees) Limited (the “Transferee”) [number
of shares] Class A ordinary shares standing in my name in the undertaking called
VNET Group, Inc.
to hold the same unto the
Transferee.
Signed by the Transferor:
In the presence of:
Witness to the above signature
Dated:
SCHEDULE 6
CONSENT AND DELIVERY INSTRUCTION – RESTRICTED
HOLDER
[●][●],
20[●]
Citibank, N.A. - ADR Department
388 Greenwich Street New York, New York 10013
Attn:
Account Management
VNET Group, Inc.
(CUSIP # )*
Dear Sirs:
Reference
is hereby made to (i) the Deposit Agreement, dated as of April 20, 2011, as amended and supplemented from time to time (the
“Deposit Agreement”), by and among VNET Group, Inc. (the “Company”), Citibank, N.A., as Depositary (the
“Depositary”), and all Holders and Beneficial Owners of American Depositary Shares (the “ADSs”) issued thereunder,
and (ii) the Amended and Restated Restricted ADS Letter Agreement, dated as of January 26, 2021 (the “Amended and Restated
Restricted ADS Letter Agreement”), by and between the Company and the Depositary. Capitalized terms used but not defined herein
shall have the meanings given to them in the Deposit Agreement, or, in the event so noted herein, in the Amended and Restated Restricted
ADS Letter Agreement.
The undersigned holder of Restricted
Shares (as defined in the Amended and Restated Restricted ADS Letter Agreement) (the “Restricted Holder”) hereby advises
the Depositary and the Company of its intent to deposit, or to cause to be deposited on its behalf, the Designated Shares specified in
Schedule I hereto and the Company hereby consents to the issuance by the Depositary of the corresponding Designated Restricted
ADSs (as defined in the Amended and Restated Restricted ADS Letter Agreement).
Each of the Restricted Holder
and the Company hereby represents and warrants to the Depositary that (a) the Designated Shares (as defined in the Amended and Restated
Restricted ADS Letter Agreement) being deposited for the purpose of the issuance of Designated Restricted ADSs are validly issued, fully
paid and non-assessable, and free of any preemptive rights of the holders of outstanding Shares, (b) the deposit of the specified
Designated Shares and the issuance and delivery of Designated Restricted ADSs in respect thereof, in each case upon the terms contemplated
in the Amended and Restated Restricted ADS Letter Agreement, will not, as of the time of such deposit and issuance, require registration
under the Securities Act, (c) all approvals required by Cayman Islands law to permit the deposit of the specified Designated Shares
under the Deposit Agreement and the Amended and Restated Restricted ADS Letter Agreement have been obtained prior to the deposit of the
specified Designated Shares, (d) the Designated Shares are of the same class as, and rank pari passu with, the other Shares
on deposit under the Deposit Agreement, and (e) the specified Restricted Holder of the Designated Shares specified on Schedule
I hereto will be the Beneficial Owner of the corresponding Designated Restricted ADSs immediately following the deposit of the Designated
Shares.
*
Please insert applicable CUSIP # prior to completion and delivery. General RADSs – CUSIP # 90138A 99 6 / Convertible
Bond RADSs – CUSIP # 90138A 88 9.
Each of
the Restricted Holder and the Company confirms that payment of the applicable fees, taxes and expenses payable under the terms of the
Deposit Agreement and the Amended and Restated Restricted ADS Letter Agreement upon the deposit of Shares and issuance of ADSs is being
made to the Depositary concurrently herewith.
Each of
the Restricted Holder and the Company has caused this Consent and Delivery Instruction to be executed and delivered on its behalf by
their respective officers thereunto duly authorized as of the date set forth above.
[RESTRICTED
HOLDER] |
|
|
|
By: |
|
|
Name: |
|
Title: |
|
|
|
Consented to: |
|
|
|
VNET Group, Inc. |
|
|
|
By: |
|
|
Name: |
|
Title: |
|
Schedule I
Designated
Shares |
Designated
Restricted ADSs |
of
Designated Restricted ADSs |
Shares |
ADSs |
|
SCHEDULE 7
WITHDRAWAL CERTIFICATION
[●][●],
20[●]
Citibank, N.A. - ADR Department 388 Greenwich Street
New York, New York 10013
Attn:
Account Management
Dear Sirs:
VNET Group, Inc. (CUSIP # )*
Reference is hereby made to (i) the Deposit
Agreement, dated as of April 20, 2011, as amended and supplemented from time to time (the “Deposit Agreement”),
by and among VNET Group, Inc. (the “Company”), Citibank, N.A., as Depositary (the “Depositary”),
and all Holders and Beneficial Owners of American Depositary Shares (the “ADSs”) issued thereunder, and (ii) the
Amended and Restated Restricted ADS Letter Agreement, dated as of January 26, 2021 (the “Amended and Restated Restricted
ADS Letter Agreement”), by and between the Company and the Depositary. Capitalized terms used but not defined herein shall
have the meanings given to them in the Deposit Agreement, or, in the event so noted herein, in the Amended and Restated Restricted ADS
Letter Agreement.
1. This
Withdrawal Certification is being furnished in connection with the withdrawal of Restricted Shares upon surrender of Restricted ADSs
to the Depositary.
2. We
acknowledge, or, if we are acting for the account of another person, such person has confirmed to us that it acknowledges, that the Restricted
ADSs and the Restricted Shares represented thereby have not been registered under the Securities Act.
3.
We certify that either (check one):
(a) we
have sold or otherwise transferred, or agreed to sell or otherwise transfer and at or prior to the time of withdrawal will have sold
or otherwise transferred, the Restricted ADSs or the Restricted Shares represented thereby to persons other than US Persons (as defined
in Regulation S under the Securities Act) in an offshore transaction (as defined in Regulation S under the Securities Act) in accordance
with Rule 904 of Regulation S under the Securities Act [, provided that in connection with such transfer, we have
delivered or will deliver an opinion of U.S. counsel reasonably satisfactory to the Depositary and the Company to the effect that the
transfer is exempt from the registration requirements of the Securities Act], or
(b) we
have sold or otherwise transferred, or agreed to sell or otherwise transfer and at or prior to the time of withdrawal will have sold
or otherwise transferred, the Restricted ADSs or the Restricted Shares represented thereby in a transaction exempt from registration
pursuant to Rule 144 under the Securities Act[, provided that in connection with such transfer, we have delivered or will
deliver an opinion of U.S. counsel reasonably satisfactory to the Depositary and the Company to the effect that the transfer is exempt
from the registration requirements of the Securities Act], or
(c) we
will be the beneficial owner of the Restricted Shares upon withdrawal, and, accordingly, we agree that (x) we will not offer, sell,
pledge or otherwise transfer the Restricted Shares except (A) in a transaction exempt from registration pursuant to Rule 144
under the Securities Act, if available, (B) in an offshore transaction (as defined in Regulation S under the Securities Act) to
persons other than U.S. Persons (as defined in Regulation S under the Securities Act) in accordance with Rule 904 of Regulation
S under the Securities Act, (C) pursuant to any other available exemption from the registration requirements of the Securities Act,
or (D) pursuant to an effective registration statement under the Securities Act, in each case in accordance with any applicable
securities laws of the states of the United States, and (y) we will not deposit or cause to be deposited such Restricted Shares
into any depositary receipt facility established or maintained by a depositary bank (including any such facility maintained by the Depositary),
so long as such Restricted Shares are “Restricted Securities” (within the meaning of given to such term in the Deposit Agreement).
*
Please insert applicable CUSIP # prior to completion and delivery. General RADSs – CUSIP # 90138A 99 6 / Convertible
Bond RADSs – CUSIP # 90138A 88 9.
The undersigned hereby instructs the Depositary
to cancel the Restricted ADSs specified below, to deliver the Shares represented thereby as specified below and, if applicable, to issue
to the undersigned a statement identifying the number of Restricted ADSs held by the undersigned and not cancelled pursuant to these
instructions. The undersigned appoints the Depositary and any of its authorized representatives as its attorney to take the actions contemplated
above on behalf of the undersigned. The undersigned confirms that applicable fees, taxes and expenses payable under the terms of the
Deposit Agreement and the Amended and Restated Restricted ADS Letter Agreement in connection the cancellation of Restricted ADSs and
the withdrawal of the corresponding Restricted Shares is being made to the Depositary concurrently herewith.
Name of Owner: |
|
|
|
Social Security Number or |
|
Taxpayer Identification Number
of Owner: |
|
|
|
Account Number of Owner: |
|
|
|
Number of Restricted ADSs to
be cancelled: |
|
|
|
Delivery Information for delivery
of Shares Represented by Restricted ADSs to be cancelled: |
|
|
|
Date: |
|
|
|
Signature of Owner: |
(Identify Title if Acting in
Representative Capacity) |
MEDALLION GUARANTEE
Medallion
Guarantee Stamp (Notary public seal is not acceptable)
Name of Firm Issuing Guarantee: |
|
Authorized Signature of Officer: |
|
Title of Officer Signing This Guarantee: |
|
Area Code and Telephone Number: |
|
The
signature(s) above must be guaranteed by an Eligible Guarantor Institution that is a member in good standing of a recognized Medallion
Signature Guarantee Program approved by The Securities Transfer Association, Inc.
The
signature(s) must be stamped with a Medallion Signature Guarantee by a qualified financial institution, such as a commercial bank,
savings bank, savings and loan institutions, U.S. stock broker and security dealer, or credit union, that is participating in an approved
Medallion Signature Guarantee Program. A NOTARY PUBLIC SEAL IS NOT ACCEPTABLE.
SCHEDULE 8
TRANSFER CERTIFICATION
[●][●],
20[●]
Citibank, N.A. - ADR Department
388 Greenwich Street
New York, New York 10013
Attn: Account Management
VNET Group, Inc.
(CUSIP # )*
Dear Sirs:
Reference is hereby made to
(i) the Deposit Agreement, dated as of April 20, 2011, as amended and supplemented from time to time (the “Deposit
Agreement”), by and among VNET Group, Inc., (the “Company”), Citibank, N.A., as Depositary (the “Depositary”),
and all Holders and Beneficial Owners of American Depositary Shares (the “ADSs”) issued thereunder, and (ii) the
Amended and Restated Restricted ADS Letter Agreement, dated as of January 26, 2021 (the “Amended and Restated Restricted
ADS Letter Agreement”), by and between the Company and the Depositary. Capitalized terms used but not defined herein shall
have the meanings given to them in the Deposit Agreement, or, in the event so noted herein, in the Amended and Restated Restricted ADS
Letter Agreement.
In connection with the transfer
of the Restricted ADSs surrendered herewith (the “Surrendered Restricted ADSs”) to the person(s) specified in
Schedule I hereto, the undersigned Holder certifies that:
(CHECK ONE)
(a) The
Surrendered Restricted ADSs are being transferred to a person who the undersigned Holder reasonably believes is a “Qualified Institutional
Buyer” (within the meaning of Rule 144A under the Securities Act) for the account of a Qualified Institutional Buyer in a
transaction meeting the requirements of Rule 144A under the Securities Act and the transferee is acquiring the Surrendered Restricted
ADSs for investment purposes only without a view to distribution.
OR
(b) The
Surrendered Restricted ADSs are being transferred to a person other than a U.S. Person (as defined in Regulation S under the Securities
Act) in an offshore transaction meeting the requirements of Regulation S under the Securities Act and the transferee is acquiring the
Surrendered Restricted ADSs for investment purposes without a view to distribution.
If neither of the items above
is checked, the Depositary shall not be obligated to register the Surrendered Restricted ADSs in the name of any person other than the
Holder thereof unless and until the conditions to any such transfer or registration set forth in the Deposit Agreement and the Amended
and Restated Restricted ADS Letter Agreement shall have been satisfied (including, without limitation, the delivery of an opinion of
U.S. securities counsel).
*
Please insert applicable CUSIP # prior to completion and delivery. General RADSs – CUSIP # 90138A 99 6 / Convertible
Bond RADSs – CUSIP # 90138A 88 9.
The transferor confirms that
applicable taxes and expenses payable in connection the transfer of ADSs under the terms of the Deposit Agreement and the Amended and
Restated Restricted ADS Letter Agreement is being made to the Depositary concurrently herewith.
The transferee has and, if
acting on behalf of the Beneficial Owner, such Beneficial Owner has agreed to take a Restricted ADSs identical to the Restricted ADSs
surrendered for transfer and subject to the same restrictions on transfer set forth in the Amended and Restated Restricted ADS Letter
Agreement.
MEDALLION GUARANTEE
Medallion
Guarantee Stamp (Notary public seal is not acceptable)
Name of Firm Issuing Guarantee: |
|
Authorized Signature of Officer: |
|
Title of Officer Signing This Guarantee: |
|
Area Code and Telephone Number: |
|
The
signature(s) above must be guaranteed by an Eligible Guarantor Institution that is a member in good standing of a recognized Medallion
Signature Guarantee Program approved by The Securities Transfer Association, Inc.
The
signature(s) must be stamped with a Medallion Signature Guarantee by a qualified financial institution, such as a commercial bank, savings
bank, savings and loan institutions, U.S. stock broker and security dealer, or credit union, that is participating in an approved Medallion
Signature Guarantee Program. A NOTARY PUBLIC SEAL IS NOT ACCEPTABLE.
SCHEDULE 9
ISSUER CONSENT LETTER
VNET Group, Inc.
Guanjie Building Southeast 1st Floor
10# Jiuxianqiao East Road
Chaoyang District, Beijing 100016
People’s Republic of China
[Date]
Securities Services Operations, Citibank Hong Kong
9/F Citi Tower
One Bay East
83 Hoi Bun Road
Kwun Tong, Kowloon, Hong Kong.
Citibank, N.A., as depositary 388 Greenwich Street
New York, NY10013
Attn: ADR Department
Ladies and Gentlemen:
VNET Group, Inc. (the
“Company”) hereby consents to the deposit into the ADR facility existing under the terms of the Deposit Agreement,
dated as of April 20, 2011 (the “Deposit Agreement”), by and among the Company, Citibank, N.A., as Depositary,
and the Holders and Beneficial Owners of American Depositary Shares issued thereunder, by the person(s) listed below of the Shares
set forth opposite their name (none of which are “Restricted Securities” within the meaning given to such term in the Deposit
Agreement).
VNET Group, Inc.
SCHEDULE 10
CONFIRMATION LETTER FOR SHARE TRANSFERS
VNET Group, Inc.
Guanjie Building Southeast 1st Floor
10# Jiuxianqiao East Road
Chaoyang District, Beijing 100016
People’s Republic of China
| To: | Maples Fund Services
(Cayman) Limited c/o Maples Fund Services (Asia) Limited
16th Floor, Central
Plaza, 18 Harbour Road, Wanchai, |
Hong Kong
Attn:
Chris Liu/ Tim Lee/ Gary Lau
Date:
Dear Sirs,
VNET Group, Inc. (the “Company”)
Transfer of Class A Ordinary Shares
I hereby confirm, on behalf of the board of directors
of the Company, that you are instructed to register the transfer of Class A ordinary shares of the Company from the transferor(s) listed
in Exhibit A attached hereto to the transferees listed in Exhibit A attached hereto, upon receipt of the relevant signed instruments
of transfer and without seeking further confirmation on the respective transfer.
The Company will issue new share certificates
accordingly. A copy of the executed share certificate will be provided for your records.
The use of this letter was approved by written
resolutions of the directors of the Company passed on 23 September 2011.
Yours faithfully,
Name:
Title: Director
For and on behalf of the Company
Exhibit A
Transferor(s) |
Transferee(s) |
Share
Certificate No. |
Number
of Class A
Ordinary Shares |
|
|
|
|
SCHEDULE 11
OFFICER’S CERTIFICATE
I, [●] of VNET Group, Inc., an exempted
company with limited liability incorporated under the laws of the Cayman Island (the “Company”), do hereby certify that:
(a) A
registration has been made in the share register in the name of Citi (Nominees) Limited for [●] Class A ordinary shares, which
shares are represented by Certificate No. [●] registered in the name of Citi (Nominees) Limited, as depositary (the“Depositary”).
(b) Attached
hereto as Exhibit A is a true, correct and complete specimen of the certificate representing Class A ordinary shares of the
Company duly authorized and validly issued in accordance with the constituent documents of the Company.
(c) The
Class A ordinary shares referred to above are being deposited in accordance with the Deposit Agreement, dated as of April 20,
2011 by and among the Company, the Depositary and all Holders and Beneficial Owners of American Depositary Shares issued thereunder.
(d) Attached
hereto as Exhibit B is a true and correct extract from Maples Fund Services (Asia) Limited showing the Depositary as a member of
the Company reflecting all Class A ordinary shares heretofore issued to the Depositary, and not otherwise cancelled by the Depositary,
including, without limitation, those Class A ordinary shares referred to in (a) above.
IN
WITNESS WHEREOF, I have duly executed and delivered this Officer’s Certificate dated of , 20 .
VNET Group, Inc.
SCHEDULE 12
CONSENT AND DELIVERY INSTRUCTION - COMPANY
[●][●],
20[●]
Citibank, N.A. - ADR Department
388 Greenwich Street
New York, New York 10013
Attn: Account Management
VNET Group, Inc. (CUSIP # )*
Dear Sirs:
Reference is hereby made to
(i) the Deposit Agreement, dated as of April 20, 2011, as amended and supplemented from time to time (the “Deposit
Agreement”), by and among VNET Group, Inc. (the “Company”), Citibank, N.A., as Depositary (the “Depositary”),
and all Holders and Beneficial Owners of American Depositary Shares (the “ADSs”) issued thereunder, and (ii) the
Amended and Restated Restricted ADS Letter Agreement, dated as of January 26, 2021 (the “Amended and Restated Restricted
ADS Letter Agreement”), by and between the Company and the Depositary. Capitalized terms used but not defined herein shall
have the meanings given to them in the Deposit Agreement, or, in the event so noted herein, in the Amended and Restated Restricted ADS
Letter Agreement.
The Company hereby deposits
the Designated Shares specified in Schedule I hereto on behalf of the specified beneficial owners thereof and hereby consents
to the issuance by the Depositary of the corresponding Designated Restricted ADSs (as defined in the Amended and Restated Restricted
ADS Letter Agreement).
The Company hereby represents
and warrants to the Depositary that (a) the Designated Shares (as defined in the Amended and Restated Restricted ADS Letter Agreement)
being deposited for the purpose of the issuance of Designated Restricted ADSs are validly issued, fully paid and non-assessable, and
free of any preemptive rights of the holders of outstanding Shares, (b) the deposit of the specified Designated Shares and the issuance
and delivery of Designated Restricted ADSs in respect thereof, in each case upon the terms contemplated in the Amended and Restated Restricted
ADS Letter Agreement, will not, as of the time of such deposit and issuance, require registration under the Securities Act, (c) all
approvals required by Cayman Islands law to permit the deposit of the specified Designated Shares under the Deposit Agreement and the
Amended and Restated Restricted ADS Letter Agreement have been obtained prior to the deposit of the specified Designated Shares, (d) the
Designated Shares are of the same class as, and rank pari passu with, the other Shares on deposit under the Deposit Agreement,
and (e) the specified beneficial owners of the Designated Shares specified on Schedule I hereto will be the Beneficial Owners of
the corresponding Designated Restricted ADSs immediately following the deposit of the Designated Shares.
The Company confirms that payment
of the applicable fees, taxes and expenses payable under the terms of the Deposit Agreement and the Amended and Restated Restricted ADS
Letter Agreement upon the deposit of Shares and issuance of ADSs is being made to the Depositary concurrently herewith.
The Company has caused this
Consent and Delivery Instruction to be executed and delivered on its behalf by their respective officers thereunto duly authorized as
of the date set forth above.
*
Please insert applicable CUSIP # prior to completion and delivery. General RADSs – CUSIP # 90138A 99 6 / Convertible
Bond RADSs – CUSIP # 90138A 88 9.
|
VNET Group, Inc. |
|
|
|
|
|
By: |
|
Name: |
|
Title: |
Schedule I
Designated
Shares |
Designated
Restricted ADSs |
Name
and Address of
Beneficial Owner of Designated
Restricted ADSs |
Shares |
ADSs |
|
SCHEDULE 13
SHARE CONVERSION FORM
The undersigned,
(the “B Shareholder”), hereby elects to convert
Class B Ordinary Shares standing in its name in the company called VNET Group, Inc. (the “Company”)
into an equal number of Class A Ordinary Shares of the Company. The original share certificate in the name of the B Shareholder,
if any, is enclosed for the Company’s cancellation.
Signed by the B Shareholder:
Name of
B Shareholder
Dated:
20
The parties hereto have executed
and delivered this Deed the day and year first above written.
THE CHARGOR
EXECUTED
and DELIVERED
as a deed by CHEN SHENG
|
)
)
) |
|
, its authorised director for and on behalf of |
) |
|
Fast Horse Technology LIMITED |
) |
/s/ CHEN SHENG |
|
) |
Signature of director |
|
) |
Name: CHEN SHENG |
[Execution Page –
Share Charge (BVI-2 – Listco) –BVI-2]
THE INVESTOR
EXECUTED
and DELIVERED
as a deed by Wang
Peng
|
)
)
) |
|
, its authorised director for and on behalf of |
) |
|
SHINING RICH HOLDINGS LIMITED |
) |
/s/ Wang Peng |
耀富控股有限公司 |
) |
Signature of authorised signatory |
|
) |
Name: Wang Peng |
[Execution Page –
Share Charge (BVI-2 – Listco) – Investor]
Exhibit 99.27
EXECUTION VERSION
Dated
5th day of July 2024 |
SUNRISE CORPORATE HOLDING LTD.
as Chargor
IN FAVOUR OF
SHINING RICH HOLDINGS LIMITED
耀富控股有限公司
as Investor |
CHARGE OVER SHARES
|
THIS
DEED is made on the 5th day of July 2024
BY:
SUNRISE
CORPORATE HOLDING LTD., a BVI business company incorporated under the laws of the British Virgin Islands with limited liability
with company number 1622848 and with its registered office at Kingston Chambers P.O. Box 173, Road Town, Tortola, British Virgin
Islands (the “Chargor”)
IN FAVOUR OF:
SHINING
RICH HOLDINGS LIMITED 耀富控股有限公司, a BVI business company incorporated
under the laws of the British Virgin Islands with limited liability with company
number
1972405 and with its registered office at Portcullis Chambers, 4th Floor Ellen Skelton Building, 3076 Sir Francis Drake Highway, Road
Town, Tortola, British Virgin Islands VG1110 (the “Investor”).
(The parties
referred above shall collectively be referred to as the “Parties” and each a “Party”.)
NOW
THIS DEED WITNESSES as follows:
| 1. | DEFINITIONS
AND INTERPRETATION |
Unless otherwise defined in this Deed
or unless the context otherwise requires, terms and expressions defined in or construed for the purposes of the Subscription Agreement
as amended from time to time shall bear the same meanings when used herein. In addition:
“Additional Ordinary Shares”
means:
| (b) | any
Class A Shares and/or Class B Shares acquired by the Chargor in respect of Shares
by reason of a stock split, stock dividends, stock dividend paid or made in respect of Shares
in the form of Class A Shares or Class B Shares (as the case may be), reclassification,
conversion or otherwise, including any Class A Shares converted from Shares in the form
of Class B Shares in accordance with the memorandum and articles of association of Listco
and in accordance with the ADS Conversion Process (or otherwise); and |
| (c) | any
Class A Shares released or returned by the Depositary (or its nominee) to the Chargor
as a result of: |
| (i) | any
Shares being unable to be deposited with the Depositary in accordance with the ADS Conversion
Process for any reason; |
| (ii) | any
ADSs previously issued in exchange for the deposit of such Shares being surrendered for the
purpose of withdrawal of the Class A Shares represented thereby (whether or not at the
direction of the Investor). |
“ADS Conversion Process”
means the process comprising of the deposit of all or any part of the Class A Shares with the Depositary (or its nominee) in exchange
for the issuance by the Depositary of a corresponding number of ADSs representing the Class A Shares being exchanged.
“BVI Act” means
the British Virgin Islands Business Companies Act 2004, as amended and/or supplemented from time to time.
“Certificated Shares”
means any and all of the Shares which are represented by a share certificate from time to time.
“Charged Property”
means: (a) the Share Collateral (and any part of them); (b) the Related Rights in relation to the Share Collateral; and (c) all
the assets and/or undertaking (including but not limited to the Share Collateral and all Related Rights in relation thereto) of the Chargor
which from time to time are the subject of the security created or expressed to be created in favour of the Investor by or pursuant to
this Deed.
“Collateral Rights”
means all rights, powers and remedies of the Investor provided by or pursuant to this Deed or by law.
“Companies Act”
means the Companies Act (As Revised) of the Cayman Islands.
“Companies Ordinance”
means the Companies Ordinance (Cap. 622 of the laws of Hong Kong).
“Event of Default”
has the meaning given to the term “Event of Default” under the Note Instrument.
“Further Shares”
means all Class A Shares and Class B Shares held by the Chargor which are required under paragraph (b) of clause 15.21
(Conditions Subsequent) or any other provisions of the Subscription Agreement to become subject to the Security conferred or intended
to be conferred on the Investor by or pursuant to this Deed in form and substance satisfactory to the Investor.
“Initial Class B Shares”
means the 8,087,875 Class B Shares owned by the Chargor, represented by share certificate number OB-063.
“Issuer” means GenTao
Capital Limited, a BVI business company incorporated under the laws of the British Virgin Islands with limited liability with company
number 1759132 and with its registered office at Vistra Corporate Services Centre, Wickhams Cay II, Road Town, Tortola, VG1110, British
Virgin Islands.
“Listco”
means VNET Group, Inc. ( 世纪互联集团), an exempted company incorporated in the Cayman
Islands with limited liability whose class A ordinary shares (in the form of ADSs) are traded under the ticker symbol “VNET”
on NASDAQ Global Select Market.
“Receiver” means
a receiver or receiver and manager or an administrative receiver of the whole or any part of the Charged Property and that term will
include any appointee under a joint and/or several appointment.
“Register of Members”
means the Register of Members of the Listco (including any applicable branch register and non-listed shares register) maintained by the
Listco in accordance with the Companies Act.
“Related Rights”
means, in relation to any Charged Property:
| (a) | any
proceeds of sale, transfer, redemption, substitution, exchange, conversion or other disposal,
or agreement for sale, transfer, redemption, substitution, exchange, conversion or other
disposal, of; |
| (b) | any
moneys or proceeds paid or payable (including interest and dividends) deriving from; |
| (c) | any
rights (including to securities), claims, guarantees, indemnities, security or covenants
for title in relation to; |
| (d) | any
certificate or other evidence of title to; |
| (e) | all
other rights, powers, benefits and privileges, present and future, which the Chargor may
have in respect of; and/or |
| (f) | any
other assets or property deriving from, |
the Shares from time to time, including
(A) any ADSs issued in exchange for the deposit of Shares with the Depositary (or its nominee) in accordance with clause 15.21 (Conditions
Subsequent) of the Subscription Agreement and the ADS Conversion Process and (B) all other securities, assets or rights which
the Chargor may have to any or all of the Shares which are deposited with or registered in the name of the Depositary or any other depositary,
custodian, nominee, clearing house or system, investment manager, chargee or other similar person or their nominee, in each case whether
or not on a fungible basis (including any rights against any such person).
“Secured Obligations”
means all obligations at any time due, owing or incurred by the Obligors, to the Investor under the Transaction Documents (or any of
them) (as amended, restated, supplemented and/or novated from time to time), whether present or future, actual or contingent (and whether
incurred solely or jointly and whether as principal or surety or in some other capacity).
“Security
Period” means the period from and including the date of execution of this Deed to and including the date of discharge of the
security created by this Deed in accordance with Clause 19 (Release of Security).
“Share Registrar”
means Maples Fund Services (Asia) Limited and any successor share registrar for Listco acceptable to the Investor.
“Shares” means:
| (a) | the
Initial Class B Shares; and |
| (b) | the
Additional Ordinary Shares. |
“Share Collateral”
means all present and future Shares beneficially owned by the Chargor, and/or any substitute or additional Shares thereof from time to
time, while any Secured Obligations are outstanding.
“Subscription Agreement”
means the subscription agreement dated 2024
entered into between (among others) the Issuer as issuer and the Investor as investor, pursuant to which, the Issuer agrees to issue
to the Investor, and the Investor agrees to subscribe from the Issuer, the Note (as supplemented, modified or amended from time to time).
“Triggering
Event” has the meaning given to it in Clause 7.1.1.
In this Deed:
| 1.2.1 | the
rules of construction set out in clause 1.2 of the Subscription Agreement shall apply
to this Deed mutatis mutandis; |
| 1.2.2 | references
in this Deed to any Clause or Schedule shall be to a clause or schedule contained in this
Deed; and |
| 1.2.3 | any
reference to the Chargor and the Investor shall be construed so as to include its or their
(and any subsequent) successors and any permitted assigns and transferees in accordance with
their respective interests. |
The Chargor hereby covenants with the
Investor that it shall on demand pay and discharge each of the Secured Obligations on their due date as provided for in the Transaction
Documents.
| (a) | All
the security created under this Deed: |
| (i) | is
created in favour of the Investor; |
| (ii) | is
created over present and future assets of the Chargor; |
| (iii) | is
created by the Chargor as the beneficial owner of the Charged Property; and |
| (iv) | is
continuing security for the payment, discharge and performance of all the Secured Obligations. |
| (b) | If
the rights of the Chargor under a document cannot be the subject of this Security without
the consent of a party to that document: |
| (i) | the
Chargor must notify the Investor promptly; |
| (ii) | this
Security will secure all amounts which the Chargor may receive, or has received, under that
document or in respect of that other asset, but exclude the document or that other asset
itself; and |
| (iii) | unless
the Investor otherwise requires, the Chargor must use reasonable endeavours to obtain the
consent of the relevant party to that document being the subject of this Security. |
| (a) | The
Chargor hereby charges as beneficial owner in favour of the Investor, as security for the
payment and discharge of the Secured Obligations, by way of first fixed charge, all the Chargor’s
right, title and interest from time to time in and to the Share Collateral and all its other
present and future Related Rights in relation thereto. |
| (b) | The
Chargor hereby authorises the Investor to arrange at any time following the occurrence of
an Event of Default which is continuing for the Charged Property or any part thereof to be
registered in the name of the Investor (or its nominee) thereupon to be held, as so registered,
subject to the terms of this Deed and at the request of the Investor, the Chargor shall without
delay procure that the foregoing shall be done. |
| 3.3 | Creation
of floating charge |
The
Chargor charges as beneficial owner to the Investor by way of first floating charge and as a continuing security for the payment and
discharge of the Secured Obligations all of the Charged Property, other than any Charged Property validly and effectively charged or
assigned (whether at law or in equity) pursuant to Clause 3.2 (Fixed Charge).
| 3.4 | Conversion
of floating charge |
Notwithstanding anything express or implied
in this Deed, the Investor may at any time after the occurrence of an Event of Default, by giving notice in writing to
that effect to the Chargor convert the floating charge created by Clause 3.3 (Creation of floating charge) into a fixed
charge as regards any assets specified in such notice. The conversion shall take effect immediately upon the giving of the notice.
Notwithstanding anything express or implied
in this Deed, and without prejudice to any law which may have similar effect, if:
| (i) | the
Chargor creates or attempts to create any security over all or any of the Charged Property
without the prior consent of the Investor or save as expressly permitted under any Transaction
Document; or |
| (ii) | any
person levies or attempts to levy any distress, sequestration, execution or other process
against, or appoints a receiver over, any of the Charged Property; or |
| (iii) | if
any steps are taken, including the presentation of a petition and the making of an application
for the liquidation, insolvency or administration of the Chargor or if a provisional liquidator
or liquidator is appointed; or |
| (iv) | in
any other circumstances prescribed by law, |
then
the floating charge created by Clause 3.3 (Creation of floating charge) will automatically (without notice) be converted
into a fixed charge as regards all of the assets subject to the floating charge.
The
giving of a notice by the Investor pursuant to Clause 3.4(a) (Conversion by notice) in relation to any Charged Property
shall not be construed as a waiver or abandonment of the rights of the Investor to serve similar notices in respect of any other class
of assets or any other right of the Investor.
| 4.1.1 | The
Chargor shall promptly after execution of this Deed (or, in respect of any Additional Ordinary
Shares acquired after the date of this Deed, promptly after such Additional Ordinary Shares
become subject to the Security conferred or intended to be conferred on the Investor by or
pursuant to this Deed) procure that the following notation to be entered on the Register
of Members provided that such notation shall be completed to reflect the details of the relevant
Shares: |
“The
[·] class [·] ordinary shares issued and registered in the name of Sunrise Corporate
Holding Ltd. represented by share certificate[s] number [·] [and [·]]
are charged in favour of Shining Rich Holdings Limited 耀富控股有限公司
pursuant to a charge over shares dated [Date] 2024, as amended from time to time. The date that this annotation is made is [Date].”
| 4.1.2 | The
Chargor shall provide the Investor with a certified true copy of an extract of the Register
of Members with the annotation referred to in Clause 4.1.1 within five (5) Business
Days of the date of this Deed (or, in respect of any Additional Ordinary Shares acquired
after the date of this Deed, within five (5) Business Days of the date on which such
Additional Ordinary Shares become subject to the Security conferred or intended to be conferred
on the Investor by or pursuant to this Deed). |
| 4.1.3 | The
Chargor represents and warrants that, on the date of this Deed, it is not registered as a
non-Hong Kong company under Part 16 of the Companies Ordinance nor has it made any application
to be so registered. |
| 4.1.4 | If
at any time after the date of this Deed, the Chargor applies to have itself registered as
a non-Hong Kong company under Part 16 of the Companies Ordinance, it shall promptly
notify the Investor in writing. Without prejudice to the foregoing, upon its being registered
as a non-Hong Kong company under Part 16 of the Companies Ordinance, the Chargor shall
promptly: |
| (a) | notify
the Investor and provide it with the details of such registration; and |
| (b) | (and
in any case within one month after the date of such registration) take all necessary steps
to comply with the requirements under section 340 of the Companies Ordinance in respect of
this Deed and the security created hereby. |
| 4.1.5 | Registration
of Security in the BVI |
| (a) | The
Chargor is required by section 162 of the BVI Act to establish and maintain a register of
charges (“Register of Charges”) and details of the Security created by
this Deed shall be entered in the Register of Charges kept at the Chargor’s registered
office or at the office of the registered agent of the Chargor. The Chargor shall, within
five (5) Business Days of the execution of this Deed and in compliance with the BVI
Act, enter the details of the Security created by this Deed in the Register of Charges maintained
at the Chargor’s registered office. The Chargor shall, within five (5) Business
Days of the execution of this Deed, deliver to the Investor a copy of the Register of Charges
duly certified by a director of the Chargor. |
| (b) | The
Chargor shall, or shall assist the Investor to, contemporaneously with the execution of this
Deed, register with the Registrar of Corporate Affairs in the British Virgin Islands details
of the Security created by this Deed in the Register of Registered Charges maintained at
the Registrar pursuant to section 163 of the BVI Act. |
| (c) | If
the registration referred to in paragraph (b) of this Clause 4.1.5 is not being effected
by or on behalf of the Investor, the Chargor shall, promptly on receipt, and in any event,
within fifteen (15) Business Days from the date of this Deed, deliver to the Investor a true
copy of the Certificate of Registration of Charge in relation to the registration of this
Deed duly certified by a director of the Chargor. |
| 4.2 | [Intentionally
deleted] |
| 4.3 | Delivery
of Documents of Title |
The Chargor shall:
| 4.3.1 | on
the date of this Deed, deposit with the Investor (or procure the deposit with the Investor
of) an acknowledgment from each person (if any) holding any Shares existing as at the date
of this Deed as its nominee, substantially in the form set out in Schedule 2 (Form of
Acknowledgment from Nominee); |
| 4.3.2 | procure
that, where any nominee holding any Shares or Related Rights ceases to be or act as such,
the successor nominee (or, if more than one, each successor nominee)) shall forthwith execute
and deliver to the Investor an acknowledgment in respect of such Shares or Related Rights
in substantially the form set out in Schedule 2 (Form of Acknowledgment from Nominee)
or in such other form as the Investor may reasonably request; |
| 4.3.3 | on
the date of this Deed, deposit with the Investor (or procure the deposit with the Investor
of) the following in respect of any Initial Class B Shares existing as at the date of
this Deed: |
| (a) | all
share certificates (if any) or other documents of title; |
| (b) | an
instrument of transfer in the form set out in Schedule 1 (Form of Instrument of Transfer)
which has been duly executed by the Chargor as transferor in blank (with the date, the
name of the transferee and the number of shares left blank); |
| (c) | an
irrevocable proxy and irrevocable power of attorney made in respect of the Share Collateral
in the form set out in Schedule 3 (Form of Irrevocable Appointment of Proxy and Power
of Attorney) which has been duly executed by the Chargor in blank (with the date and
the number of shares left blank); and |
| (d) | a
notice of charge from the Chargor to the Listco in the form set out in Schedule 4 (Form of
Notice of Charge) which has been duly executed by the Chargor, |
the documents set out in paragraphs (a) to
(d) above together, the “Security Deliverables”;
| 4.3.4 | deposit
with the Investor (or procure the deposit with the Investor of) such documents as the Investor
deems necessary or desirable for the ADS Conversion Process in form and substance satisfactory
to the Investor (collectively, the “ADS Conversion Documents”): |
| (a) | on
the date of this Deed, all documents for the ADS Conversion Process in the form set out in
Schedule 5 to Schedule 13 which have been duly executed by the Chargor or the Listco (as
the case may be); and |
| (b) | such
further ADS Conversion Documents as the Investor deems necessary or desirable in accordance
with clause 15.21 (Conditions Subsequent) of the Subscription Agreement, |
| 4.3.5 | in
respect of the Additional Ordinary Shares, the Chargor shall, deliver (or procured there
to be delivered) to the Investor the following documents in form and substance satisfactory
to the Investor, (i) in the case of any Additional Ordinary Shares that are Further
Shares, on or prior to the date on which such Additional Ordinary Shares are required to
be furnished as Security pursuant to paragraph (b) of clause 15.21 (Conditions Subsequent)
or any other provisions of the Subscription Agreement (or, in respect of the ADS Conversion
Documents only, if later, the date on which any documents in respect of such Additional Ordinary
Shares are required to be delivered under paragraph (d) of clause 15.21 (Conditions
Subsequent) of the Subscription Agreement); and (ii) in the case of other Additional
Ordinary Shares, on the date on which such Additional Ordinary Shares become so subject to
the Security conferred or intended to be conferred on the Investor by or pursuant to this
Deed (or, in respect of the ADS Conversion Documents only, if later, the date on which any
documents in respect of such Additional Ordinary Shares are required to be delivered under
paragraph (d) of clause 15.21 (Conditions Subsequent) of the Subscription Agreement): |
| (a) | a
certified true copy of an extract of the Register of Members showing the Chargor as the registered
owner of the Additional Ordinary Shares; |
| (b) | original
valid and duly issued share certificates or other documents of title representing such Additional
Ordinary Shares; and |
| (c) | all
Security Deliverables in respect of such Additional Ordinary Shares (each of which has been
duly executed by the Chargor in the manner set out in Clause 4.3.3) in form and substance
satisfactory to the Investor; |
| (d) | all
ADS Conversion Documents; |
| 4.3.6 | on
the date of any removal or resignation of any director of the Chargor who executed any Security
Deliverables or any documents deposited with the Investor pursuant to Clauses 4.3.3, 4.3.4
or 4.3.5 in respect of any Shares during the Security Period, the Chargor shall promptly
deliver or cause to be delivered to the Investor a replacement of all such items (each having
been duly executed by a continuing or replacement director of the Chargor (in the case of
any Security Deliverables) in the manner set out in Clause 4.3.3 and (in other cases) in
form and substance satisfactory to the Investor) and a certified copy of the register of
directors of the Chargor maintained by the Chargor in accordance with the BVI Act in form
and substance satisfactory to the Investor; |
| 4.3.7 | if
at any time during the Security Period, the Investor determines that the form of any Security
Deliverable or any documents deposited with the Investor pursuant to Clause 4.3.4 or 4.3.5(d) has
been amended, updated or replaced by Listco, the Depositary, the Share Registrar and/or the
registered office provider of Listco rendering such item or document delivered incapable
of being used to effect the ADS Conversion Process, the Chargor shall promptly on demand
by the Investor, deliver to the Investor a copy of the amended, updated or replaced form
of such item or document (each having been duly executed by the Chargor (in the case of any
Security Deliverables) in the manner set out in Clause 4.3.3) in form and substance satisfactory
to the Investor; |
| 4.3.8 | the
Investor shall be entitled to hold all documents and instruments delivered to it pursuant
to this Clause 4.3 until the end of the Security Period, and the Chargor hereby irrevocably
and unconditionally authorises (and, with respect to paragraph 4.3.8 of this Clause 4.3.8,
requests and authorises) the Investor to (and the Investor shall be entitled to), at any
time after the occurrence of an Event of Default which is continuing, complete, date and
put into effect, under its power of attorney given in this Deed or otherwise, such documents
and instruments to effect a transfer of all or any Shares in favour of itself or such other
person as it shall direct; and |
| 4.3.9 | any
document or instrument required to be delivered to the Investor pursuant to this Clause 4.3
which is for any reason not so delivered or which is released by the Investor to the Chargor
shall be held on trust by the Chargor for the Investor. |
| 5.1 | Further
Assurance: General |
The Chargor shall promptly at its own
cost do all such acts and/or execute all such documents (including without limitation assignments, transfers, mortgages, charges, notices
and instructions) as the Investor may reasonably specify (and in such form as the Investor may reasonably require in favour of the Investor
or its nominee(s)):
| 5.1.1 | to
create, perfect, protect or preserve the security created or intended to be created in respect
of the Charged Property (which may include, without limitation, the re-execution of this
Deed, the execution by the Chargor of a mortgage, charge or assignment over all or any of
the assets constituting, or intended to constitute, any part of the Charged Property) or
for the exercise of the Collateral Rights, and the giving of any notice, order or direction
and the making of any filing or registration, or for the exercise of the Collateral Rights;
and/or |
| 5.1.2 | after
the occurrence of a Triggering Event, to facilitate the realisation and/or enforcement of
the assets constituting, or intended to constitute, the Charged Property (including to execute
and complete in favour of the Investor, Listco, the Share Registrar, the registered office
provider of Listco, the Depositary (or the nominee of any of the foregoing) or any purchaser
any document and to give any instruction which the Investor may reasonably require to effect
any step of the ADS Conversion Process or otherwise vest any of the Charged Property in the
Investor, any Receiver or any other transferee or purchaser). |
The Chargor shall from time to time
take all such action (whether or not requested to do so by the Investor) as is or shall be reasonably available to it (including without
limitation obtaining and/or effecting all approvals) as may be necessary for the purpose of the creation, perfection, protection or maintenance
of any security conferred or intended to be conferred on the Investor by or pursuant to this Deed.
The Chargor shall promptly deliver
to the Investor all information that is available to it and that is required in order for the Investor to comply with any applicable
laws or regulations in respect of any Charged Property (including without limitation section 329 of the Securities and Futures Ordinance
(Cap. 571 of the Laws of Hong Kong), or any similar provision in any articles of association or constitutional documents relating to
any Charged Property.
| 5.4 | Implied
Covenants for Title |
The obligations of the Chargor under
this Deed shall be in addition to any covenants for title deemed to be included in this Deed under applicable law.
| 6. | RESTRICTIONS
ON DEALINGS |
The Chargor undertakes that it shall
not, at any time during the subsistence of this Deed, create or permit to subsist any Security over all or any part of the Charged Property
unless expressly permitted under and in accordance with any of the Transaction Documents.
| 6.2 | No
Disposal of Interests |
The Chargor undertakes that, during
the subsistence of this Deed, it shall not, and shall not agree to:
| (a) | sell,
assign, transfer or otherwise dispose of any Charged Property; |
| (b) | procure
or permit Listco to issue any new shares; |
| (c) | appoint
any new director, or otherwise effect any change of director, of the Listco; or |
| (d) | otherwise
procure or permit a change of control over Listco or any Charged Property, |
except (a) as otherwise permitted
under clauses 15.5 and 15.22 of the Subscription Agreement or the provisions hereof; or (b) with the prior written consent of the
Investor.
| 7. | OPERATIONS
BEFORE AND AFTER TRIGGERING EVENT |
| 7.1.1 | The
Chargor shall, at all times prior to the giving of a notice in writing by the Investor to
the Chargor (a “Triggering Event”) that an Event of Default has occurred,
ensure that all dividends paid or made in respect of any Charged Property are applied in
accordance with the terms of the Subscription Agreement. |
| 7.1.2 | After
the occurrence of a Triggering Event, the Chargor shall promptly pay over and deliver to
the Investor for application in accordance with this Deed (and the Investor may apply in
accordance with this Deed) any and all dividends, distributions, interest and/or other monies
received and/or recovered by it in respect of all or any part of the Charged Property. |
| 7.1.3 | Any
and all dividends, distributions, interest and/or other monies received, recovered or paid/delivered
to the order of the Chargor (other than in cash) in respect of any or all of the Charged
Property shall be held by the Chargor subject to the security constituted by this Deed, provided
that if such receipt or recovery is made after the occurrence of a Triggering Event, the
Chargor shall promptly deliver such dividends, distributions, interest and/or other monies
to the Investor for application in accordance with this Deed. |
| 7.2 | Operation:
Before Triggering Event |
Prior to the occurrence of a Triggering
Event, the Chargor shall be entitled to exercise all voting rights in relation to any or all of the Share Collateral provided that the
Chargor shall not exercise such voting rights in any manner that could give rise to, or otherwise permit or agree to, any (a) variation
of the rights attaching to or conferred by any of the Share Collateral or (b) any liability on the part of the Investor.
| 7.3 | Operation:
After Triggering Event |
The Investor may, upon and/or after
the occurrence of a Triggering Event, at its discretion (in the name of the Chargor or otherwise and without any further consent or authority
from the Chargor):
| 7.3.1 | exercise
(or refrain from exercising) any voting rights in respect of the Charged Property; |
| 7.3.2 | apply
all dividends, distributions, interest and other monies arising from all or any of the Charged
Property in accordance with Clause 13 (Application of Monies); |
| 7.3.3 | have
the right to complete, date and put into effect any documents referred to in Clause 4.3 of
this Deed or transfer all or any of the Charged Property into the name of such nominee(s) of
the Investor as it shall think fit; and |
| 7.3.4 | cause
the conversion or dematerialisation of any of the Charged Property into scripless securities
and the deposit of such scripless securities into any account (whether in the name of the
Investor or otherwise); and |
| 7.3.5 | exercise
(or refrain from exercising) the powers and rights conferred on or exercisable by the legal
or beneficial owner of the Charged Property, including without limitation the right, in relation
to any company, corporation or entity whose shares, equity interests or other securities
are included in the Charged Property or any part thereof, to concur or participate in: |
| (a) | the
reconstruction, amalgamation, sale or other disposal of such company, corporation or entity
or any of its assets or undertaking (including without limitation the exchange, conversion
or reissue of any shares, equity interests or securities as a consequence thereof); |
| (b) | the
release, modification or variation of any rights or liabilities attaching to such shares,
equity interests or securities; and |
| (c) | the
exercise, renunciation or assignment of any right to subscribe for any shares, equity interests
or securities, |
in
each case in such manner and on such terms as the Investor may think fit, and the proceeds of any such action shall form part of the
Charged Property and may be applied by the Investor in accordance with Clause 13 (Application of Monies).
The Chargor shall pay when due all
calls or other payments which may be or become due in respect of any of the Charged Property, and in any case of default by the Chargor
in such payment, the Investor may, if it thinks fit, make such payment on behalf of the Chargor in which case any sums paid by the Investor
shall be reimbursed by the Chargor to the Investor on demand.
| 7.5.1 | The
Chargor shall not exercise any of its rights and powers in relation to any of the Charged
Property in any manner which, in the opinion of the Investor, would prejudice the value of,
or the ability of the Investor to realise, the security created by this Deed. |
| 7.5.2 | The
Investor shall not have any duty to ensure that any dividends, interest or other monies and
assets receivable in respect of the Charged Property are duly and punctually paid, received
or collected as and when the same become due and payable or to ensure that the correct amounts
(if any) are paid or received on or in respect of the Charged Property
or to ensure the taking up of any (or any offer of any) stocks, shares, rights, monies or other property paid, distributed, accruing
or offered at any time by way of redemption bonus, rights, preference, or otherwise on or in respect of, any of the Charged Property.
|
| 7.5.3 | The
Chargor shall not at any time during the Security Period exercise the right to nominate any
person other than the Investor or the nominee of the Investor to enjoy or exercise any right
relating to any of the Charged Property. |
| 8. | [INTENTIONALLY
DELETED] |
| 9. | ENFORCEMENT
OF SECURITY |
Upon and after the occurrence of a
Triggering Event or if the Chargor requests the Investor to exercise any of its powers under this Deed, the security created by or pursuant
to this Deed is immediately enforceable and the Investor may, with prior notice to the Chargor or prior authorisation from any court,
in its absolute discretion:
| 9.1.1 | assume
control of, and to have it or its nominee registered as holder of legal title to, any Charged
Property; |
| 9.1.2 | sell,
exchange, grant options over, or otherwise dispose of, any Charged Property by any method,
at any time and on any terms, it thinks fit or to postpone doing of any of these things; |
| 9.1.3 | complete,
date and deliver any document delivered to it under this Deed; |
| 9.1.4 | borrow
or raise money either unsecured or on the security of the Charged Property (either in priority
to the Security conferred or intended to be conferred on the Investor by or pursuant to this
Deed or otherwise); |
| 9.1.5 | settle,
adjust, refer to arbitration, compromise and arrange any claims, accounts, disputes, questions
and demands relating to the Charged Property; |
| 9.1.6 | bring,
prosecute, enforce, defend and abandon actions, suits and proceedings in relation to the
Charged Property or any business of the Chargor; |
| 9.1.7 | redeem
any Security (whether or not having priority to the Security conferred or intended to be
conferred on the Investor by or pursuant to this Deed) over the Charged Property and to settle
the accounts of any person with an interest in the Charged Property; |
| 9.1.8 | exercise
and do (or permit the Chargor or any nominee of the Chargor to exercise and do) all such
rights and things as the Investor would be capable of exercising or doing if it were the
absolute beneficial owner of the Charged Property; |
| 9.1.9 | enforce
all or any part of such security (at the times, in the manner and on the terms it thinks
fit) and take possession of and hold or dispose of all or any part of the Charged Property;
and |
| 9.1.10 | whether
or not it has appointed a Receiver, exercise all or any of the powers, authorities and discretions
conferred by this Deed on any Receiver or otherwise conferred by law on mortgagees and/or
Receivers. |
| 9.2 | No
Liability as Mortgagee in Possession |
Neither the Investor nor any Receiver
shall be liable to account as a mortgagee in possession in respect of all or any part of the Charged Property or be liable for any loss
upon realisation or for any neglect, default or omission in connection with the Charged Property to which a mortgagee or a mortgagee
in possession might otherwise be liable, unless in each case, directly caused by its wilful misconduct.
The
power of sale or other disposal conferred on the Investor and on any Receiver by this Deed shall arise (and the Secured Obligations shall
be deemed due and payable for that purpose) on execution of this Deed and shall be exercisable in accordance with Clause 9.1 (Enforcement)
and any applicable law or regulation.
Any restrictions imposed by law on
the power of sale or on the consolidation of security (including without limitation any restriction under paragraph 11 of the Fourth
Schedule to the Conveyancing and Property Ordinance (Cap. 219) of the Laws of Hong Kong) shall be excluded to the fullest extent permitted
by law.
| 11. | APPOINTMENT
OF RECEIVER |
| 11.1 | Appointment
and Removal |
Upon and after the occurrence of a
Triggering Event or if requested to do so by the Chargor, the Investor may by deed or otherwise (acting through an authorised officer
of the Investor), without prior notice to the Chargor:
| 11.1.1 | appoint
one or more persons to be a Receiver over the whole or any part of the Charged Property; |
| 11.1.2 | appoint
two or more Receivers of separate parts of the Charged Property; |
| 11.1.3 | remove
(so far as it is lawfully able) any Receiver so appointed; and/or |
| 11.1.4 | appoint
another person(s) as an additional or replacement Receiver(s). |
| 11.2 | Capacity
of Receivers |
Each
person appointed to be a Receiver pursuant to Clause 11.1 (Appointment and Removal) shall be:
| 11.2.1 | entitled
to act individually or together with any other person appointed or substituted as Receiver; |
| 11.2.2 | for
all purposes deemed to be the agent of the Chargor which shall be solely responsible for
his acts, defaults and liabilities and for the payment of his remuneration and no Receiver
shall at any time act as agent for the Investor; and |
| 11.2.3 | entitled
to remuneration for his services at a rate to be fixed by the Investor from time to time. |
If at any time there is more than one
Receiver, each Receiver may separately exercise all of the powers conferred by this Deed and to the exclusion of any other Receiver (unless
the document appointing such Receiver states otherwise).
| 11.4 | Statutory
Powers of Appointment |
The powers of appointment of a Receiver
herein contained shall be in addition to all statutory and other powers of appointment of the Investor under applicable law and such
powers shall remain exercisable from time to time by the Investor in respect of all or any part of the Charged Property.
Every Receiver shall (subject to any
restrictions in the instrument appointing him but notwithstanding any winding-up or dissolution of the Chargor) have and be entitled
to exercise, in relation to the Charged Property (and any assets of the Chargor which, when got in, would be Charged Property) or that
part thereof in respect of which he was appointed, and as varied and extended by the provisions of this Deed (in the name of or on behalf
of the Chargor or in his own name and, in each case, at the cost of the Chargor):
| 12.1.1 | all
the powers conferred by the Conveyancing and Property Ordinance (Cap. 219) of the Laws of
Hong Kong on mortgagors and on mortgagees in possession and on receivers appointed under
that Ordinance (as if the Charged Property constituted property that is subject to that Ordinance
and as if such Receiver were appointed under that Ordinance), free from any limitation under
paragraph 11 of the Fourth Schedule to that Ordinance; |
| 12.1.2 | all
the powers and rights of an absolute owner and power to do or omit to do anything which the
Chargor itself could do or omit to do; and |
| 12.1.3 | the
power to do all things (including without limitation bringing or defending proceedings in
the name or on behalf of the Chargor) which seem to that Receiver to be incidental or conducive
to (a) any of the functions, powers, authorities or discretions conferred on or vested
in him or (b) the exercise of any Collateral Rights (including without limitation realisation
of all or any part of the Charged Property) or (c) bringing to his hands any assets
of the Chargor forming, or which, when got in, would be part of the Charged Property. |
| 12.2 | Additional
Powers of Receiver |
In
addition to and without prejudice to the generality of the foregoing, every Receiver shall (subject to any limitations or restrictions
expressed in the instrument appointing him but notwithstanding any winding-up or dissolution of the Chargor) have the following powers
in relation to the Charged Property (and any assets of the Chargor which, when got in, would be part of the Charged Property) in respect
of which he was appointed (and every reference in this Clause 12.2 to the “Charged Property” shall be read
as a reference to that part of the Charged Property in respect of which such Receiver was appointed):
power to enter upon, take immediate possession
of, collect and get in the Charged Property including without limitation dividends and other income whether accrued before or after the
date of his appointment;
| 12.2.2 | Proceedings
and Claims |
power to bring, prosecute, enforce, defend
and abandon applications, claims, disputes, actions, suits and proceedings in connection with all or any part of the Charged Property
or this Deed in the name of the Chargor or in his own name and to submit to arbitration, negotiate, compromise and settle any such applications,
claims, disputes, actions, suits or proceedings;
power to carry on and manage, or concur
in the carrying on and management of or to appoint a manager of, the whole or any part of the Charged Property or any business relating
thereto in such manner as he shall in his absolute discretion think fit;
| 12.2.4 | Deal
with Charged Property |
power, in relation to the Charged Property
and each and every part thereof, to sell, transfer, convey, dispose of or concur in any of the foregoing by the Chargor or any other
receiver or manager of the Chargor (including without limitation to or in relation to the Investor) in such manner and generally on such
terms as he thinks fit;
power to purchase, lease, hire or otherwise
acquire any assets or rights of any description which he shall in his absolute discretion consider necessary or desirable for the carrying
on, improvement or realisation of the whole or any part of the Charged Property or otherwise for the benefit of the whole or any part
of the Charged Property;
power to promote, procure the formation
or otherwise acquire the share capital of, any body corporate with a view to such body corporate becoming a subsidiary of the Chargor
or otherwise and purchasing, leasing or otherwise acquiring an interest in the whole or any part of the Charged Property or carrying
on any business in succession to the Chargor or any subsidiary of the Chargor;
power to effect, maintain or renew indemnity
and other insurances and to obtain bonds and performance guarantees;
power to raise or borrow money from the
Investor or any other person to rank either in priority to the security constituted by this Deed or any part of it or otherwise and with
or without a mortgage or charge on the Charged Property or any part of it on such terms as he shall in his absolute discretion think
fit (and no person lending such money shall be concerned to see or enquire as to the propriety or purpose of the exercise of such power
or the application of money so raised or borrowed);
| 12.2.9 | Redemption
of Security |
power to redeem, discharge or compromise
any security whether or not having priority to the security constituted by this Deed or any part of it;
| 12.2.10 | Covenants,
Guarantees and Indemnities |
power to enter into bonds, covenants,
guarantees, commitments, indemnities and other obligations or liabilities as he shall think fit, to make all payments needed to effect,
maintain or satisfy such obligations or liabilities and to use the company seal of the Chargor; and
| 12.2.11 | Exercise
of Powers in Chargor’s Name |
power to exercise any or all of the above
powers on behalf of and in the name of the Chargor (notwithstanding any winding-up or dissolution of the Chargor) or on his own behalf.
In
making any sale or other disposal of all or any part of the Charged Property or any acquisition in the exercise of their respective powers
(including without limitation a disposal by a Receiver to any subsidiary of the Chargor or other body corporate as is referred to in
Clause 12.2.6), a Receiver or the Investor may accept or dispose of as, and by way of consideration for, such sale or other disposal
or acquisition, cash, shares, loan capital or other obligations, including without limitation consideration fluctuating according to
or dependent upon profit or turnover and consideration the amount whereof is to be determined by a third party. Any such consideration
may, if thought expedient by the Receiver or the Investor, be nil or may be payable or receivable in a lump sum or by instalments. Any
contract for any such sale, disposal or acquisition by the Receiver or the Investor may contain conditions excluding or restricting the
personal liability of the Receiver or the Investor.
| 12.4 | Relationship
with Investor |
To the fullest extent allowed by law,
any right, power or discretion conferred by this Deed (either expressly or impliedly) or by law on a Receiver may after the Security
conferred or intended to be conferred on the Investor by or pursuant to this Deed becomes enforceable be exercised by the Investor in
relation to any Charged Property without first appointing a Receiver and notwithstanding the appointment of a Receiver.
Save
as otherwise expressly provided in this Deed, all moneys and/or non-cash recoveries and/or proceeds received or recovered by the Investor
or any Receiver pursuant to this Deed or the powers conferred by it shall (subject to the claims of any person having prior rights thereto
and subject to Clause 13.2 (Suspense Account)) be applied:
| 13.1.1 | first,
in the payment of the costs, charges and expenses incurred and payments made by any Receiver,
the payment of his remuneration and the discharge of any liabilities incurred by such Receiver
in, or incidental to, the exercise of any of his powers; |
| 13.1.2 | second,
be applied by the Investor as the Investor shall think fit in discharge of the Secured Obligations;
and |
| 13.1.3 | third,
following such payments, the remaining balance (if any) shall be paid to the Chargor for
its rights and interests or such other person as may be entitled thereto. |
All
monies received, recovered or realised under this Deed by the Investor or any Receiver or the powers conferred by it (including the proceeds
of any conversion of currency) may in its discretion be credited to and held in any suspense or impersonal account pending their application
from time to time in or towards the discharge of any of the Secured Obligations in accordance with Clause 13.1 (Order of Application).
| 13.3 | Application
by Chargor |
Any
application under this Clause 13 shall override any application by the Chargor.
| 14. | RECEIPT
AND PROTECTION OF PURCHASERS |
| 14.1 | Receipt
and Consideration |
The receipt of the Investor or any
Receiver shall be conclusive discharge to a purchaser of any part of the Charged Property from the Investor or such Receiver and in making
any sale or disposal of any part of the Charged Property or making any acquisition, the Investor or any Receiver may do so for such consideration,
in such manner and on such terms as it thinks fit.
| 14.2 | Protection
of Purchasers |
No purchaser or other person dealing
with the Investor or any Receiver shall be bound to inquire whether the right of the Investor or such Receiver to exercise any of its
powers has arisen or become exercisable or be concerned with any propriety or regularity on the part of the Investor or such Receiver
in such dealings. No person (including a purchaser) dealing with the Investor or a Receiver or its or his agents will be obliged or concerned
to enquire:
| (a) | whether
the Secured Obligations have become payable; |
| (b) | whether
any power which the Investor or a Receiver is purporting to exercise has become exercisable
or is being properly exercised; |
| (c) | whether
any money remains due under the Transaction Documents; or |
| (d) | how
any money paid to the Investor or to that Receiver is to be applied. |
The protection given to purchasers
from a mortgagee in sections 52 and 55 of the Conveyancing and Property Ordinance (Cap. 219) of the Laws of Hong Kong shall apply mutatis
mutandis to purchaser(s) and other person(s) dealing with the Investor or any Receiver.
| 15.1 | Appointment
and Powers |
The Chargor by way of security irrevocably
(within the meaning of Section 4 of the Powers of Attorney Ordinance (Cap. 31) of the Laws of Hong Kong) appoints the Investor and
any Receiver severally to be its attorney and in its name, on its behalf to execute, deliver and perfect all documents and do all things
which the Investor or such Receiver may consider to be necessary for:
| 15.1.1 | carrying
out any obligation imposed on the Chargor by this Deed or any other agreement binding on
the Chargor to which the Investor is party (including without limitation the execution and
delivery of any deeds, charges, assignments or other security and any transfers of the Charged
Property or any part thereof); and |
| 15.1.2 | enabling
the Investor and any Receiver to exercise, or delegate the exercise of, any of the rights,
powers and authorities conferred on them by or pursuant to this Deed or by law (including,
without limitation, upon or after the occurrence of a Triggering Event, the exercise of any
right of a legal or beneficial owner of the Charged Property or any part thereof). |
The Chargor shall ratify and confirm
all things done and all documents executed by any attorney in the lawful exercise or purported exercise of all or any of his powers pursuant
to this Deed.
The Chargor represents and warrants
to the Investor that:
| 16.1.1 | it
is a company with limited liability, duly incorporated, validly existing and in good standing
under the laws of the British Virgin Islands; |
| 16.1.2 | subject
to Legal Reservations, each of the obligations expressed to be assumed by it in this Deed
are legal, valid, binding and enforceable obligation, and this Deed creates the security
interests which it purports to create and such security interests are valid and effective; |
| 16.1.3 | the
entry into and performance by it of, and the transactions contemplated by, this Deed do not
and will not: |
| (a) | conflict
with any law or regulation applicable to it; |
| (b) | conflict
with its constitutional documents; |
| (c) | conflict
with any agreement or instrument binding upon it or any of its assets; or |
| (d) | result
in the existence of or oblige it to create any security over all or any of its assets (other
than the security constituted pursuant to this Deed); |
| 16.1.4 | it
has the power to enter into, perform and deliver, and has taken all necessary action to authorise
its entry into, performance and delivery of, this Deed; |
| 16.1.5 | no
limit on its powers will be exceeded as a result of the grant of security contemplated by
this Deed; |
| 16.1.6 | all
Approvals required or desirable: |
| (a) | to
enable it lawfully to enter into, exercise its rights and comply with its obligations in
this Deed; |
| (b) | to
make this Deed admissible in evidence in its jurisdiction of incorporation and/or Hong Kong;
and/or |
| (c) | to
enable it to create the security expressed to be created by it pursuant to this Deed and
to ensure that such security has the priority and ranking it is expressed to have, |
have been obtained or effected and are
in full force and effect;
| 16.1.7 | subject
to Legal Reservations, the choice of the laws of Hong Kong as the governing law of this Deed
will be recognised and enforced in its jurisdiction of incorporation and in the courts of
Hong Kong; |
| 16.1.8 | subject
to Legal Reservations, any judgment obtained in the courts of Hong Kong in relation to this
Deed will be recognised and enforced in its jurisdiction of incorporation and/or Hong Kong; |
| 16.1.9 | save
and except for those as set out in Clause 4, under the law of its jurisdiction of incorporation
it is not necessary that this Deed be filed, recorded or enrolled with any court or other
authority in that jurisdiction or that any stamp, registration or similar tax be paid on
or in relation to this Deed; |
| 16.1.10 | all
consents necessary to enable any asset that is expressed to be subject to any security under
this Deed to be the subject of effective security under this Deed have been obtained and
are in full force and effect; |
| 16.1.11 | it
is, and will be, the sole beneficial owner of the Charged Property free from security (other
than the security constituted pursuant to this Deed) and this Deed creates in favour of the
Investor first ranking Security Interest over the Charged Property; |
| 16.1.12 | it
has not sold or otherwise disposed of, or created, granted or permitted to subsist any security
over, all or any of its right, title and interest in the Charged Property (other than the
security constituted pursuant to this Deed and other than as expressly permitted under this
Deed); |
| 16.1.13 | the
Share Collateral have been validly issued and allotted by the Listco and are fully paid up
and there are no monies or liabilities payable or outstanding by the Chargor in relation
to any of the Shares; |
| 16.1.14 | it
is solvent and: |
| (a) | no
petition has been presented, no order has been made, or resolution passed for the winding
up of the Chargor or for the appointment of a liquidator or provisional liquidator to the
Chargor; |
| (b) | no
administrator has been appointed in relation to the Chargor and to the best information and
knowledge of the Chargor, no notice has been given or filed with the court of an intention
to appoint an administrator and no petition or application has been presented or order has
been made for the appointment of an administrator in respect of the Chargor; |
| (c) | no
receiver or administrative receiver or manager has been appointed, to the best information
and knowledge of the Chargor, no notice has been given of the appointment of any such person,
over the whole or part of the business or assets of the Chargor; |
| (d) | the
Chargor has not proposed or agreed to a composition, compromise, assignment or arrangement
with any of its creditors; and |
| (e) | to
the best information and knowledge of the Chargor, the Chargor is not subject to or threatened
by any other procedures or steps which are analogous to those set out above. |
| 16.1.15 | no
Event of Default is continuing or might reasonably be expected to result from the entry into,
the performance of, or any transaction contemplated by this Deed; |
| 16.1.16 | to
the best of the knowledge and information of the Chargor, no other event or circumstance
is outstanding which constitutes (or, with the expiry of a grace period, the giving of notice,
the making of any determination or any combination of any of the foregoing, would constitute)
a default or termination event (however described) under any other agreement or instrument
which is binding on it or to which its assets are subject; and |
| 16.1.17 | to
the best information and knowledge of the Chargor, no litigation, arbitration, investigation
or administrative proceedings of or before any court, arbitral body or agency been started
or threatened, or is pending, against it or its assets which may have a Material Adverse
Effect. |
Each of the representations and warranties
above shall be deemed to be repeated by the Chargor on each day of the Security Period by reference to the facts and circumstances existing
at the date on which such representation or warranty is deemed to be made or repeated.
| 17.1 | The
Chargor shall not and shall procure that there shall not be any sale, transfer or disposal
of any Shares or Charged Property or any interest therein, without the prior written consent
of the Investor. |
| 17.2 | The
Chargor hereby covenants during the Security Period it will remain the legal and the beneficial
owner of the Charged Property (subject only to the security created by this Deed) and that
it shall not: |
| 17.2.1 | create
or permit to subsist any security (other than that created by this Deed) on or in respect
of the whole of any part of the Charged Property or any of its interest therein; or |
| 17.2.2 | sell,
lease, assign, lend, dispose of, transfer or otherwise deal with any of its interest in the
Charged Property (other than pursuant to this Deed) and in any such case, without the prior
written consent of the Investor; or |
| 17.2.3 | do,
or permit to be done, any act or thing that would or might depreciate, jeopardise or otherwise
prejudice the security held by the Investor, or diminish the value of any of the Charged
Property or the effectiveness of the security created by this Deed. The Chargor shall, promptly
on becoming aware, notify the Investor in writing of any representation or warranty set out
in Clause 16.1 of this Deed which is incorrect or misleading in any material respect when
made or deemed to be repeated and any breach of any covenant set out in this Deed. |
| 17.3 | The
Chargor shall deliver to the Investor as soon as reasonably practicable immediately upon
receipt by the Chargor copies of all notices of general meetings, proposed shareholder resolutions
of the Listco, financial statements and all other materials distributed to, or requiring
action by, shareholders of the Listco from time to time and all other materials and information
distributed by the Listco to, or requiring action by, the shareholders of the Listco and
such other information concerning the Listco (that the Chargor as a shareholder of the Listco
would have known) as the Investor shall from time to time request. |
| 17.4 | The
Chargor shall remain liable to perform all the obligations assumed by it in relation to the
Charged Property and the Investor shall be under no obligation of any kind whatsoever in
respect thereof or be under any liability whatsoever in the event of any failure by the Chargor
to perform its obligations in respect thereof. |
| 17.5 | The
Chargor shall not take, or allow the taking of, any action on its behalf which may result
in the rights attaching to, or conferred by, all or any of the Charged Property being altered. |
| 17.6 | The
Chargor shall not waive, release, settle, compromise, abandon or set-off any claim or the
liability of any person in respect of the Related Rights, or do or omit to do any other act
or thing whereby the recovery in full of the Related Rights as and when they become payable
may be impeded. |
| 18. | EFFECTIVENESS
OF SECURITY |
The security created by or pursuant
to this Deed shall remain in full force and effect as a continuing security for the Secured Obligations unless and until discharged by
the Investor. No part of the security from time to time intended to be constituted by this Deed will be considered satisfied or discharged
by any intermediate payment, discharge or satisfaction of the whole or any part of the Secured Obligations.
The security created by this Deed and
the Collateral Rights shall be cumulative, in addition to and independent of every other security which the Investor may at any time
hold for any or all of the Secured Obligations or any rights, powers and remedies provided by law. No prior security held by the Investor
over the whole or any part of the Charged Property shall merge into the security constituted by this Deed.
| 18.3 | Chargor’s
Obligations |
None
of the obligations of the Chargor under this Deed or the Collateral Rights shall be affected by an act, omission, matter, thing or event
which, but for this Clause 18.3, would reduce, release or prejudice any of its obligations under this Deed including (without
limitation and whether or not known to it or the Investor):
| 18.3.1 | the
winding-up, dissolution, administration, reorganisation, death, insolvency, incapacity or
bankruptcy of the Chargor or any other person or any change in its status, function, control
or ownership; |
| 18.3.2 | any
of the obligations of the Chargor or any other person under any Transaction Document being
or becoming illegal, invalid, unenforceable or ineffective in any respect; |
| 18.3.3 | any
time, waiver or consent granted to, or composition with, the Chargor or any other person; |
| 18.3.4 | the
release of the Chargor or any other person under the terms of any composition or arrangement
with any creditor of the Chargor or any other person; |
| 18.3.5 | the
taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to
perfect, take up or enforce, any rights against, or security over assets of, the Chargor
or other person or any non-presentation or non-observance of any formality or other requirement
in respect of any instrument or any failure to realise the full value of any security; |
| 18.3.6 | any
incapacity or lack of power, authority or legal personality of or dissolution or change in
the members or status of the Chargor or any other person; |
| 18.3.7 | any
amendment, novation, supplement, extension (whether of maturity or otherwise) or restatement
(in each case however fundamental and of whatsoever nature, and whether or not more onerous)
or replacement of a Transaction Document or any other document or security or of the Secured
Obligations; |
| 18.3.8 | any
unenforceability, illegality or invalidity of any obligation of any person under any Transaction
Document or any other document or security; |
| 18.3.9 | any
insolvency or similar proceedings; |
| 18.3.10 | any
claims or set-off right that the Chargor may have; or |
| 18.3.11 | any
law, regulation or decree or order of any jurisdiction affecting the Chargor. |
Without
prejudice to the generality of Clause 18.3(Chargor’s Obligations), the Chargor expressly confirms that it intends
that the security created under this Deed, and the Collateral Rights, shall extend from time to time to any (however fundamental and
of whatsoever nature, and whether or not more onerous) variation, increase, extension or addition of or to any of the Transaction Documents
or any other security relating to any Transaction Document.
| (a) | No
failure on the part of the Investor to exercise, or any delay on its part in exercising,
any Collateral Right shall operate as a waiver thereof, nor shall any single or partial exercise
of any Collateral Right preclude any further or other exercise of that or any other Collateral
Right. |
| (b) | No
election by the Investor or any Receiver to affirm this Deed or to waive any Collateral Rights
shall be effective unless it is in writing. |
| (c) | The
Collateral Rights are cumulative and not exclusive of the rights of the Investor or any Receiver
under the general law. No single or partial exercise of any Collateral Right shall preclude
any further or other exercise of that or any other Collateral Right. |
The Chargor waives any right it may
have of first requiring the Investor (or any trustee or agent on its behalf) to proceed against or enforce any other right or security
or claim payment from any person or file any proof or claim in any insolvency, administration, winding-up or liquidation proceedings
relative to any other person before claiming from the Chargor under this Deed.
None of the Investor, its nominee(s) or
any Receiver shall be liable by reason of (a) taking any action permitted by this Deed or (b) any neglect or default in connection
with all or any part of the Charged Property or (c) taking possession of or realising all or any part of the Charged Property, except
in the case of wilful default upon its part (as finally judicially determined).
If, at any time, any provision of this
Deed is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity
or enforceability of the remaining provisions of this Deed under such laws nor of such provision under the laws of any other jurisdiction
shall in any way be affected or impaired thereby and, if any part of the security intended to be created by or pursuant to this Deed
is invalid, unenforceable or ineffective for any reason, that shall not affect or impair any other part of that security.
The Investor shall not be obliged to
make any demand of or enforce any rights or claim against the Chargor or any other person, to take any action or obtain judgment in any
court against the Chargor or any other person or to make or file any proof or claim in a liquidation, bankruptcy or insolvency of the
Chargor or any other person or to enforce or seek to enforce any other security in respect of any or all of the Secured Obligations before
exercising any Collateral Right.
Until the time when (i) all Secured
Obligations have been irrevocably discharged in full and (ii) all amounts which may be or become payable by the Chargor and the
Chargor under or in connection with the Transaction Documents have been irrevocably paid in full, the Chargor will not (unless the Investor
otherwise directs) exercise any rights which it may have by reason of performance by it of its obligations under this Deed:
| 18.10.1 | to
be indemnified by the Chargor; |
| 18.10.2 | to
claim any contribution from any guarantor (if any) of the Chargor’s obligations under
any or all of the Transaction Documents; and/or |
| 18.10.3 | to
take the benefit (in whole or in part and whether by way of subrogation or otherwise) of
any rights of the Investor under the Transaction Documents or of any other guarantee or security
taken pursuant to, or in connection with, the Transaction Documents by the Investor. |
| 18.11 | Settlement
conditional |
Any settlement, discharge or release
hereunder in relation to the Chargor or all or any part of the Charged Property shall be conditional upon no security or payment by the
Chargor to the Investor being avoided or reduced by virtue of any bankruptcy, insolvency, liquidation or similar laws of general application
or any similar event or for any other reason and shall in the event of any such avoidance or reduction or similar event be void and the
liability of the Chargor under this Deed and the Security created by this Deed shall continue as if such payment, settlement, discharge
or release had not occurred.
| 19.1 | Redemption
of Security |
Upon the time when (i) all Secured
Obligations have been irrevocably discharged in full, and (ii) all amounts which may be or become payable by the Chargor under or
in connection with the Transaction Documents have been irrevocably paid in full, the Investor
shall, at the request (with reasonable notice) and cost of the Chargor, as soon as reasonably practicable, release and cancel the security
constituted by this Deed on the relevant Share Collateral or any balance paid by the Chargor under Clause 3.2 (Fixed Charge)
and procure the reassignment to the Chargor of the property and assets assigned to the Investor and the return to the Chargor of
the certificates and documents delivered to the Investor pursuant to this Deed (to the extent not otherwise sold, assigned or otherwise
disposed of or applied in accordance with this Deed), in each case subject to Clauses 19.2 (Avoidance of Payments) and 18.11 (Settlement
conditional) and without recourse to, or any representation or warranty by, the Investor or any of its nominees.
| 19.2 | Avoidance
of Payments |
If the Investor reasonably considers
that any amount paid or credited to or recovered by the Investor from the Chargor is capable of being avoided or reduced by virtue of
any bankruptcy, insolvency, liquidation or similar laws, the liability of the Chargor under this Deed and the security constituted by
this Deed shall continue and such amount shall not be considered to have been irrevocably paid.
| 20. | SUBSEQUENT
AND PRIOR SECURITY INTERESTS |
| 20.1 | Subsequent
security interests |
If the Investor (acting in its capacity
as chargee or otherwise) at any time receives or is deemed to have received notice of any subsequent security or other interest affecting
all or any part of the Charged Property or any assignment or transfer of the Charged Property which is prohibited by the terms of this
Deed or the Transaction Documents, all payments thereafter by or on behalf of the Chargor to the Investor shall be treated as having
been credited to a new account of the Investor and not as having been applied in reduction of the Secured Obligations as at the time
when (or at any time after) the Investor received such notice of such subsequent security or other interest or such assignment or transfer.
| 20.2 | Prior
security interests |
In the event of any action, proceeding
or step being taken to exercise any powers or remedies conferred by any prior ranking security or upon the exercise by the Investor or
any Receiver of any power of sale under this Deed or any Collateral Right, the Investor may redeem any prior ranking security over or
affecting any Charged Property or procure the transfer of any such prior ranking security to itself. The Investor may settle and agree
the accounts of the beneficiary of any such prior security and any accounts so settled and agreed will be conclusive and binding on the
Chargor. All principal, interest, costs, charges, expenses and/or other amounts relating to and/or incidental to any such redemption
or transfer shall be paid by the Chargor to the Investor upon demand.
| 21. | CURRENCY
CONVERSION AND INDEMNITY |
For the purpose of or pending the discharge
of any of the Secured Obligations the Investor may convert any money received, recovered or realised or subject to application by it
under this Deed from one currency to another, as the Investor may think fit, and any such conversion shall be effected at the Investor’s
spot rate of exchange (or, if no such spot rate of exchange is quoted by the Investor, such other rate of exchange as may be available
to the Investor) for the time being for obtaining such other currency with such first-mentioned currency.
If any sum (a “Sum”)
owing by the Chargor under this Deed or any order or judgment given or made in relation to this Deed has to be converted from the currency
(the “First Currency”) in which such Sum is payable into another currency (the “Second Currency”)
for the purpose of:
| 21.2.1 | making
or filing a claim or proof against the Chargor; |
| 21.2.2 | obtaining
an order or judgment in any court or other tribunal; |
| 21.2.3 | enforcing
any order or judgment given or made in relation to this Deed; or |
| 21.2.4 | applying
the Sum in satisfaction of any of the Secured Obligations, |
the Chargor shall indemnify the Investor
from and against any loss suffered or incurred as a result of any discrepancy between (a) the rate of exchange used for such purpose
to convert such Sum from the First Currency into the Second Currency and (b) the rate or rates of exchange available to the Investor
at the time of such receipt or recovery of such Sum.
| 22. | COSTS,
EXPENSES AND INDEMNITY |
The Chargor shall, on demand of the
Investor, reimburse the Investor on a full indemnity basis for all costs and expenses (including legal fees and any value added tax)
incurred by the Investor in connection with (a) the execution of this Deed or otherwise in relation to this Deed, including but
not limited to costs and expenses relating to any amendment of this Deed, (b) the perfection or enforcement of the security constituted
by this Deed, (c) the exercise of any Collateral Right, together with interest from the date such costs and expenses were incurred
to the date of reimbursement of the same by the Chargor, and/or (d) the release of the security constituted by this Deed.
The Chargor shall pay all stamp, registration
and other Taxation to which this Deed, the security contemplated in this Deed and/or any judgment given in connection with this Deed
is, or at any time may be, subject and shall, from time to time, indemnify the Investor on demand against any liabilities, costs, claims
and/or expenses resulting from any failure to pay or delay in paying any such Tax.
The Chargor shall, notwithstanding
any release or discharge of all or any part of the security constituted by this Deed, indemnify the Investor, its agents, attorneys and
any Receiver against any action, proceeding, claims, losses, liabilities and costs which it may sustain as a consequence of any breach
by the Chargor of the provisions of this Deed, the exercise or purported exercise of any of the rights and powers conferred on any of
them by this Deed or otherwise relating to the Charged Property or any part thereof.
| 23. | PAYMENTS
FREE OF DEDUCTION |
All payments to be made to the Investor
under this Deed shall be made free and clear of and without deduction for or on account of any Taxation unless the Chargor is required
to make such payment subject to the deduction or withholding of any Taxation, in which case the sum payable by the Chargor in respect
of which such deduction or withholding is required to be made shall be increased to the extent necessary to ensure that, after the making
of such deduction or withholding, the person on account of whose liability to tax such deduction or withholding has been made receives
and retains (free from any liability in respect of any such deduction or withholding) a net sum equal to the sum which it would have
received and so retained had no such deduction or withholding been made or required to be made.
| 23.2 | No
set-off or counterclaim |
All payments to be made by the Chargor
under this Deed shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.
| 24. | DISCRETION
AND DELEGATION |
Any liberty or power which may be exercised
or any determination which may be made under this Deed by the Investor or any Receiver may, subject to the applicable terms and conditions
of, as the case may be, the Transaction Documents, be exercised or made in its absolute and unfettered discretion without any obligation
to give reasons.
Each
of the Investor and any Receiver shall have full power to delegate (either generally or specifically) the powers, authorities and discretions
conferred on it by this Deed (including without limitation the power of attorney under Clause 15 (Power of Attorney)) on
such terms and conditions as it shall see fit which delegation shall not preclude any subsequent exercise, any subsequent delegation
or any revocation of such power, authority or discretion by the Investor or any Receiver.
In acting as Investor and chargee,
the Investor shall have the benefit of all indemnities, protections and rights on its part set out in the Transaction Documents, as if
set out fully herein
The Investor may set off any matured
obligation due from the Chargor under any or all of the Transaction Documents (to the extent beneficially owned by the Investor) against
any matured obligation owed by the Investor to the Chargor, regardless of the place of payment, booking branch or currency of either
obligation. If such obligations are in different currencies, the Investor may convert either obligation at a market rate of exchange
in its usual course of business for the purpose of such set-off.
This Deed shall be binding upon and
enure to the benefit of each party hereto and its and/or any subsequent successors and permitted assigns and transferees. Without prejudice
to the foregoing, this Deed shall remain in effect despite any amalgamation or merger (however effected) relating to the Investor; and
references to the Investor herein shall be deemed to include any person who, under the laws of its jurisdiction of incorporation or domicile,
has assumed the rights and obligations of the Investor under this Deed or to which, under such laws, those rights and obligations have
been transferred.
| 26.2 | No
Assignment or Transfer by Chargor |
The Chargor may not assign or transfer
any or all of its rights (if any) and/or obligations under this Deed.
| 26.3 | Assignment
or Transfer by Investor |
The Investor may assign or transfer
any or all of its rights (if any) and/or obligations under this Deed.
The Investor shall be entitled to disclose
such information concerning the Chargor or any other person and this Deed as the Investor considers appropriate to any actual or proposed
direct or indirect successor or to any person to whom information may be required to be disclosed by applicable law.
| 27. | AMENDMENTS
AND WAIVERS |
| 27.1 | Any
provision of this Deed may be amended or waived only by agreement in writing between the
Chargor and the Investor. No third party’s signature is required for any amendment. |
| 27.2 | No
failure on the part of the Investor to exercise, or delay on its part in exercising, any
or all of its rights hereunder shall operate as a waiver thereof or constitute an election
to affirm this Deed. No election to affirm this Deed on the part of the Investor shall be
effective unless it is in writing. No single or partial exercise of any such right or remedy
shall preclude any further or other exercise of such or any other right or remedy. |
| 28.1 | Any
notice, claim or demand in connection with this Deed shall be in writing, in English language,
and marked “IMPORTANT LEGAL NOTICE” (each a “Notice”), and
shall be delivered or sent to the recipient at its/his email address, or address (where applicable)
listed below, or any other email address or address notified to the sender by the recipient
for the purposes of this Instrument: |
|
To
the Chargor: |
Sunrise
Corporate Holding Ltd.
Address:
10 Jiuxianqiao East Road, Chaoyang District, Beijing 100016
Email:
Josh.Chen@vnet.com
Attention:
Cheng Sheng
|
|
To the
Investor: |
Shining
Rich Holdings Limited 耀富控股有限公司
Email:
workforpapper@163.com
Attention: Fang Li / Tong Lin |
| 28.2 | If
any Investor that is a natural Person dies, until the Party giving a Notice has received
notice in writing of the grant of probate of his will or letters of administration of his
estate (or equivalent), any Notice so given shall be as effectual as if he was still living. |
| 28.3 | Without
prejudice to Clause 28.2, any Notice shall be deemed to have been served: (a) if served
by hand, when delivered and proof of delivery is obtained by the delivery party, (b) if
served by overnight courier, on the next Business Day, or (c) if sent by email, only
when received in legible form by at least one of the relevant email addresses of the person(s) to
whom the communication is made. Any Notice received on a Sunday or public holiday shall be
deemed to be received on the next Business Day. |
This Deed may be executed in any number
of counterparts, all of which taken together shall constitute one and the same instrument.
| 30.1 | A
Person who is not a Party has no right under the Contracts (Rights of Third Parties) Ordinance
(Chapter 623 of the laws of Hong Kong) to enforce or to enjoy the benefit of any term of
this Deed. |
| 30.2 | Notwithstanding
any term of this Deed, the consent of any person who is not a Party is not required to rescind
or vary this Deed at any time. |
This Deed shall be governed by and
shall be construed in accordance with Hong Kong law.
| 32.1 | With
respect to any dispute, controversy or claim arising out of or relating to this Deed, including
the existence, validity, performance, interpretation, construction, breach or termination
thereof or the consequences of its nullity (each a “Dispute”), the Parties
hereby irrevocably submit to the exclusive jurisdiction of the Hong Kong courts. |
| 32.2 | The
parties hereto agree that the courts of Hong Kong are the most appropriate and convenient
courts to settle Disputes between them and, accordingly, that they will not argue to the
contrary. |
| 32.3 | This
Clause 32 is for the benefit of the Investor only. As a result and notwithstanding Clause
32.2, nothing herein shall prevent the Investor from taking proceedings relating to a Dispute
in any other courts with jurisdiction. To the extent allowed by law the Investor may take
concurrent proceedings in any number of jurisdictions. |
| 32.4 | The
Chargor hereby waives with respect of this Deed any right to claim sovereign immunity from
jurisdiction or execution or any similar defence, and irrevocably consents to the giving
of any relief or the issue of any process, including, without limitation, the making, enforcement
or execution against any property whatsoever (irrespective of its use or intended use) of
any order of judgment made or given in connection with any proceedings arising out of or
in connection with this Deed. |
| 33.1 | Without
prejudice to any other mode of service allowed under any relevant law, the Chargor irrevocably
appoints VNET Group Limited of 37/F., Tower 1 Metroplaza, Hing Fong Road, Kwai Fong, Hong
Kong as its agent under this Deed for service of process in any proceedings before the Hong
Kong courts in connection with this Deed. |
| 33.2 | If
any person appointed as process agent under this Clause is unable for any reason to so act,
the Chargor must immediately (and in any event within five (5) days of the event taking
place) appoint another agent on terms acceptable to the Investor. Failing this, the Investor
may appoint another process agent for this purpose. |
| 33.3 | The
Chargor agrees that failure by a process agent to notify it of any process will not invalidate
the relevant proceedings. |
| 33.4 | This
Clause does not affect any other method of service allowed by law. |
SCHEDULE 1
FORM OF INSTRUMENT OF TRANSFER
Instrument of transfer
The undersigned,
Sunrise Corporate Holding Ltd. (the “Transferor”) does hereby transfer to:
(the “Transferee”),
Class
ordinary shares standing in our name in the undertaking called
VNET
Group, Inc. (世纪互联集团)
to hold the same unto the Transferee.
Signed by the Transferor: |
|
|
|
For and on behalf of |
|
Sunrise Corporate Holding
Ltd. |
|
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|
|
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Name: |
|
Title: |
|
Date: |
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Signed by the Transferee: |
|
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For and on behalf of |
|
[Name of Transferee] |
|
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Name: |
|
Title: |
|
Date: |
|
SCHEDULE 2
FORM OF ACKNOWLEDGMENT FROM NOMINEE
| To: | Shining
Rich Holdings Limited 耀富控股有限公司 (the
“Investor”, which expression shall include its successors, assigns and
transferees) |
Copy to:
Sunrise Corporate Holding Ltd. of [address]
Dear Sirs,
At the
request of Sunrise Corporate Holding Ltd., I/we hereby:
| 1. | warrant
and confirm that I am/we are the registered holder(s) of [insert number and description
of relevant Shares] in VNET Group, Inc. (世纪互联集团)
(the “Shares”) and am/are holding the Shares as nominee for and on behalf
of the Chargor; |
| 2. | acknowledge
that the Chargor has, pursuant to a deed of Charge over Shares (as amended and/or supplemented
from time to time, the “Deed”) dated 2024
by the Chargor in favour of the Investor, charged and/or granted security over the Shares
in favour of you as security upon the terms and conditions specified therein; |
| 3. | undertake
that [I]/[we] shall, upon and at all times after the earlier of being requested by you to
do so or the enforcement of the security constituted by the Deed in respect of the Shares,
hold the Shares on trust for you (or any other person whom you may nominate); |
| 4. | undertake
that [I]/[we] shall, upon being requested by you to do so, transfer the legal title in the
Shares to you (or any other person whom you may nominate) and do all acts and execute all
documents as may be necessary and/or as you may require for such purpose; and |
| 5. | irrevocably
and unconditionally appoint each of you and any Receiver (as defined in the Deed) severally
to be [my]/[our] attorney on the terms of Clause 15 (Power of Attorney) of the Deed
(applying mutatis mutandis) as if [I was]/[we were] the Chargor, and undertake to
execute such further powers of attorney in such form as you may reasonably require from time
to time. |
This acknowledgment
is governed by and shall be construed in accordance with the laws of Hong Kong.
Dated:
IN WITNESS
WHEREOF this deed has been executed the day and year above written.
[in
the case where the relevant nominee is incorporated in Hong Kong or a company incorporated outside Hong Kong which has a company seal]
THE
COMMON SEAL of
[name of nominee]
was hereunto affixed in
the presence of: |
)
)
) |
|
|
|
|
|
|
|
|
|
|
[Director][Authorised Signatory] |
|
|
OR
[in the
case where the relevant nominee is a company incorporated outside of Hong Kong and does not have any company seal]
SIGNED, SEALED and DELIVERED |
) |
|
as a DEED by |
) |
|
[name of relevant authorised signatory] |
) |
|
for and on behalf of |
) |
|
[name of relevant nominee] |
) |
|
in the presence of |
) |
|
|
|
|
Signature of witness: |
|
|
Name of witness: |
|
|
Title: |
|
|
Address of witness: |
|
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|
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|
|
Occupation of witness: |
|
|
OR
[in the case where the relevant nominee
is an individual] |
|
|
|
|
SIGNED, SEALED and DELIVERED |
) |
|
as a DEED by |
) |
|
[name of relevant nominee] |
) |
|
in the presence of |
) |
|
Signature of witness: |
|
|
Name of witness: |
|
|
Title: |
|
|
Address of witness: |
|
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Occupation of witness: |
|
|
SCHEDULE 3
FORM OF IRREVOCABLE APPOINTMENT OF PROXY
AND POWER OF ATTORNEY
VNET
Group, Inc. (世纪互联集团)
We,
Sunrise Corporate Holding Ltd., hereby irrevocably appoint Shining Rich Holdings Limited 耀富控股有限公司and
its successors, permitted transferees and permitted assigns as our:
| 1. | proxy
to vote at meetings of the members of VNET Group, Inc. (世纪互联集团)
(the “Company”) in respect of the ordinary
shares in the Company, represented by share certificate number (the
“Shares”), which are issued and/or registered in our name; and |
| 2. | duly
authorised representative and duly appointed attorney-in-fact to sign resolutions in writing
of the Company in respect of the Shares. |
The
Shares have been mortgaged and/or charged to Shining Rich Holdings Limited 耀富控股有限公司
pursuant to a charge over shares dated 2024
between Sunrise Corporate Holding Ltd. as chargor and Shining Rich Holdings Limited 耀富控股有限公司
as chargee.
This
proxy and power of attorney are irrevocable by reason of being coupled with the interest of Shining Rich Holdings Limited 耀富控股有限公司and
its successors, permitted transferees and permitted assigns as chargee of the Shares.
(The remainder of this page is intentionally
left blank)
This Deed has been executed
as a deed this day of _
2024
EXECUTED
and DELIVERED
as a deed by
, its authorised director
for and on behalf of SUNRISE CORPORATE HOLDING LTD. |
)
)
)
)
)
)
) |
Signature of director
Name: |
SCHEDULE 4
FORM OF NOTICE OF CHARGE
2024
VNET
Group, Inc. (世纪互联集团) (the “Company”)
c/o Maples Corporate Services
Limited
PO Box 309, Ugland House
Grand Cayman, KY1-1104
Cayman Islands
Dear Sirs
CHARGE OVER SHARES
We hereby
notify you that pursuant to a charge over shares (the “Charge over Shares”) dated
2024
between Sunrise Corporate Holding Ltd. as chargor (the “Chargor”) and Shining Rich Holdings Limited 耀富控股有限公司
as chargee (the “Investor”, which expression shall include its successors, permitted
transferees and permitted assigns) (a copy of which is attached for your records), the Chargor has, inter alia, charged, by way of a
first fixed charge, class ordinary
shares in the Company owned by the Chargor, represented by share certificate[s] number [and respectively]
(the “Charged Shares”) and charged, by way of a first fixed charge, all of all rights, benefits and advantages now
or at any time in the future deriving from or incidental to any of the Charged Shares including:
| (a) | any
proceeds of sale, transfer, redemption, substitution, exchange, conversion or other disposal,
or agreement for sale, transfer, redemption, substitution, exchange, conversion or other
disposal, of; |
| (b) | any
moneys or proceeds paid or payable (including interest and dividends) deriving from; |
| (c) | any
rights (including to securities), claims, guarantees, indemnities, security or covenants
for title in relation to; |
| (d) | any
awards or judgments in favour of the Charged Property (as defined in the Charge over Shares)
in relation to; |
| (e) | any
certificate or other evidence of title to; |
| (f) | all
other rights, powers, benefits and privileges, present and future, which the Chargor may
have in respect of; and |
| (g) | any
other assets or property deriving from, the Charged Shares from time to time. |
[We
hereby notify you that additional class ordinary
shares in the Company represented by share certificate[s] number [and respectively]
owned by the Chargor shall become subject to the security interests created by the Charge over Shares.]
We request
that you include the following annotation in the Register of Members of the Company and provide the Investor with a certified copy of
an extract of the annotated Register of Members:
“The class ordinary
shares issued and registered in the name of Sunrise Corporate Holding Ltd. represented by share certificate[s] number
[and ] are charged in favour of Shining Rich Holdings Limited 耀富控股有限公司
pursuant to a charge over shares dated [Date] 2024, as amended from time to time. The date that this annotation is made
is [Date].”
The terms
of the Charge over Shares contemplate that additional class ordinary shares in the Company owned by the Chargor may become subject to
the security interests created by the Charge over Shares. If any such event occurs, we will issue a further notice to specifying the
additional class ordinary shares in the Company owned by the Chargor which are then subject to the security interests created by the
Charge over Shares and request that an additional annotation is made in the Register of Members.
We request
that you, promptly and without delay, take any action necessary in order to effect a transfer of the Charged Shares made pursuant to
the terms of the Charge over Shares following notice from the Investor including but not limited to passing any board resolutions and
giving instructions to your Cayman Islands registered office provider or your share registrar that maintains your register of members.
This notice
is governed by the laws of Hong Kong.
Yours faithfully, |
|
|
|
|
|
Authorised Signatory |
|
For and on behalf of |
|
Sunrise Corporate Holding Ltd. |
|
SCHEDULE 5
INSTRUMENT OF TRANSFER
The undersigned,
[shareholder name] (the “Transferor”), does hereby transfer to Citi (Nominees) Limited (the “Transferee”) [number
of shares] Class A ordinary shares standing in my name in the undertaking called
VNET Group, Inc.
to hold the same unto the Transferee. |
|
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|
Signed by the Transferor: |
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In the presence of: |
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Witness to the above signature |
|
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Dated: |
|
SCHEDULE 6
CONSENT AND DELIVERY INSTRUCTION – RESTRICTED
HOLDER
[●][●],
20[●]
Citibank, N.A. - ADR Department
388 Greenwich Street
New York, New York 10013
Attn:
Account Management
VNET Group, Inc.
(CUSIP # )*
Dear Sirs:
Reference
is hereby made to (i) the Deposit Agreement, dated as of April 20, 2011, as amended and supplemented from time to time (the
“Deposit Agreement”), by and among VNET Group, Inc. (the “Company”), Citibank, N.A., as Depositary (the
“Depositary”), and all Holders and Beneficial Owners of American Depositary Shares (the “ADSs”) issued thereunder,
and (ii) the Amended and Restated Restricted ADS Letter Agreement, dated as of January 26, 2021 (the “Amended and Restated
Restricted ADS Letter Agreement”), by and between the Company and the Depositary. Capitalized terms used but not defined herein
shall have the meanings given to them in the Deposit Agreement, or, in the event so noted herein, in the Amended and Restated Restricted
ADS Letter Agreement.
The
undersigned holder of Restricted Shares (as defined in the Amended and Restated Restricted ADS Letter Agreement) (the “Restricted
Holder”) hereby advises the Depositary and the Company of its intent to deposit, or to cause to be deposited on its behalf,
the Designated Shares specified in Schedule I hereto and the Company hereby consents to the issuance by the Depositary of the
corresponding Designated Restricted ADSs (as defined in the Amended and Restated Restricted ADS Letter Agreement).
*
Please insert applicable CUSIP # prior to completion and delivery. General RADSs – CUSIP # 90138A 99 6 / Convertible
Bond RADSs – CUSIP # 90138A 88 9.
Each
of the Restricted Holder and the Company hereby represents and warrants to the Depositary that (a) the Designated Shares (as defined
in the Amended and Restated Restricted ADS Letter Agreement) being deposited for the purpose of the issuance of Designated Restricted
ADSs are validly issued, fully paid and non-assessable, and free of any preemptive rights of the holders of outstanding Shares, (b) the
deposit of the specified Designated Shares and the issuance and delivery of Designated Restricted ADSs in respect thereof, in each case
upon the terms contemplated in the Amended and Restated Restricted ADS Letter Agreement, will not, as of the time of such deposit and
issuance, require registration under the Securities Act, (c) all approvals required by Cayman Islands law to permit the deposit
of the specified Designated Shares under the Deposit Agreement and the Amended and Restated Restricted ADS Letter Agreement have been
obtained prior to the deposit of the specified Designated Shares, (d) the Designated Shares are of the same class as, and rank pari
passu with, the other Shares on deposit under the Deposit Agreement, and (e) the specified Restricted Holder of the Designated
Shares specified on Schedule I hereto will be the Beneficial Owner of the corresponding Designated Restricted ADSs immediately
following the deposit of the Designated Shares.
Each
of the Restricted Holder and the Company confirms that payment of the applicable fees, taxes and expenses payable under the terms of
the Deposit Agreement and the Amended and Restated Restricted ADS Letter Agreement upon the deposit of Shares and issuance of ADSs is
being made to the Depositary concurrently herewith.
Each
of the Restricted Holder and the Company has caused this Consent and Delivery Instruction to be executed and delivered on its behalf
by their respective officers thereunto duly authorized as of the date set forth above.
[RESTRICTED HOLDER] |
|
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By: |
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Name: |
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Title: |
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Consented to: |
|
VNET Group, Inc. |
|
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|
By: |
|
|
Name: |
|
Title: |
|
Schedule I
Designated
Shares |
Designated
Restricted ADSs |
of
Designated Restricted ADSs |
Shares |
ADSs |
|
SCHEDULE 7
WITHDRAWAL CERTIFICATION
[●][●],
20[●]
Citibank, N.A. - ADR Department 388 Greenwich Street New York,
New York 10013
Attn:
Account Management
Dear Sirs:
VNET Group, Inc. (Cusip # )
*
Reference is hereby made to (i) the Deposit
Agreement, dated as of April 20, 2011, as amended and supplemented from time to time (the “Deposit Agreement”),
by and among VNET Group, Inc. (the “Company”), Citibank, N.A., as Depositary (the “Depositary”),
and all Holders and Beneficial Owners of American Depositary Shares (the “ADSs”) issued thereunder, and (ii) the
Amended and Restated Restricted ADS Letter Agreement, dated as of January 26, 2021 (the “Amended and Restated Restricted
ADS Letter Agreement”), by and between the Company and the Depositary. Capitalized terms used but not defined herein shall
have the meanings given to them in the Deposit Agreement, or, in the event so noted herein, in the Amended and Restated Restricted ADS
Letter Agreement.
1. This
Withdrawal Certification is being furnished in connection with the withdrawal of Restricted Shares upon surrender of Restricted ADSs
to the Depositary.
2. We
acknowledge, or, if we are acting for the account of another person, such person has confirmed to us that it acknowledges, that the Restricted
ADSs and the Restricted Shares represented thereby have not been registered under the Securities Act.
| 3. | We
certify that either (check one): |
(a) we
have sold or otherwise transferred, or agreed to sell or otherwise transfer and at or prior to the time of withdrawal will have sold
or otherwise transferred, the Restricted ADSs or the Restricted Shares represented thereby to persons other than US Persons (as defined
in Regulation S under the Securities Act) in an offshore transaction (as defined in Regulation S under the Securities Act) in accordance
with Rule 904 of Regulation S under the Securities Act [, provided that in connection with such transfer, we have
delivered or will deliver an opinion of U.S. counsel reasonably satisfactory to the Depositary and the Company to the effect that the
transfer is exempt from the registration requirements of the Securities Act], or
(b) we
have sold or otherwise transferred, or agreed to sell or otherwise transfer and at or prior to the time of withdrawal will have sold
or otherwise transferred, the Restricted ADSs or the Restricted Shares represented thereby in a transaction exempt from registration
pursuant to Rule 144 under the Securities Act[, provided that in connection with such transfer, we have delivered or will
deliver an opinion of U.S. counsel reasonably satisfactory to the Depositary and the Company to the effect that the transfer is exempt
from the registration requirements of the Securities Act], or
*
Please insert applicable CUSIP # prior to completion and delivery. General RADSs – CUSIP # 90138A 99 6 / Convertible
Bond RADSs – CUSIP # 90138A 88 9.
(c) we
will be the beneficial owner of the Restricted Shares upon withdrawal, and, accordingly, we agree that (x) we will not offer, sell,
pledge or otherwise transfer the Restricted Shares except (A) in a transaction exempt from registration pursuant to Rule 144
under the Securities Act, if available, (B) in an offshore transaction (as defined in Regulation S under the Securities Act) to
persons other than U.S. Persons (as defined in Regulation S under the Securities Act) in accordance with Rule 904 of Regulation
S under the Securities Act, (C) pursuant to any other available exemption from the registration requirements of the Securities Act,
or (D) pursuant to an effective registration statement under the Securities Act, in each case in accordance with any applicable
securities laws of the states of the United States, and (y) we will not deposit or cause to be deposited such Restricted Shares
into any depositary receipt facility established or maintained by a depositary bank (including any such facility maintained by the Depositary),
so long as such Restricted Shares are “Restricted Securities” (within the meaning of given to such term in the Deposit Agreement).
The undersigned hereby instructs the Depositary
to cancel the Restricted ADSs specified below, to deliver the Shares represented thereby as specified below and, if applicable, to issue
to the undersigned a statement identifying the number of Restricted ADSs held by the undersigned and not cancelled pursuant to these
instructions. The undersigned appoints the Depositary and any of its authorized representatives as its attorney to take the actions contemplated
above on behalf of the undersigned. The undersigned confirms that applicable fees, taxes and expenses payable under the terms of the
Deposit Agreement and the Amended and Restated Restricted ADS Letter Agreement in connection the cancellation of Restricted ADSs and
the withdrawal of the corresponding Restricted Shares is being made to the Depositary concurrently herewith.
Name of Owner: |
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|
Social Security Number or Taxpayer Identification Number
of Owner: |
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Account Number of Owner: |
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Number of Restricted ADSs to be cancelled: |
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Delivery Information for delivery of Shares Represented
by Restricted ADSs to be cancelled: |
|
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Date: |
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Signature of Owner: |
|
(Identify Title
if Acting in Representative Capacity) |
|
MEDALLION GUARANTEE
Medallion
Guarantee Stamp (Notary public seal is not acceptable)
Name of Firm Issuing
Guarantee: |
|
Authorized Signature
of Officer: |
|
Title of Officer
Signing This Guarantee: |
|
Area Code and Telephone
Number: |
|
The signature(s) above
must be guaranteed by an Eligible Guarantor Institution that is a member in good standing of a recognized Medallion Signature Guarantee
Program approved by The Securities Transfer Association, Inc.
The signature(s) must
be stamped with a Medallion Signature Guarantee by a qualified financial institution, such as a commercial bank, savings bank, savings
and loan institutions, U.S. stock broker and security dealer, or credit union, that is participating in an approved Medallion Signature
Guarantee Program. A NOTARY PUBLIC SEAL IS NOT ACCEPTABLE.
SCHEDULE 8
TRANSFER CERTIFICATION
[●][●],
20[●]
Citibank, N.A. - ADR Department
388 Greenwich Street
New York, New York 10013
Attn: Account Management
VNET Group, Inc.
(CUSIP # )*
Dear Sirs:
Reference
is hereby made to (i) the Deposit Agreement, dated as of April 20, 2011, as amended and supplemented from time to time (the
“Deposit Agreement”), by and among VNET Group, Inc., (the “Company”), Citibank, N.A., as Depositary
(the “Depositary”), and all Holders and Beneficial Owners of American Depositary Shares (the “ADSs”)
issued thereunder, and (ii) the Amended and Restated Restricted ADS Letter Agreement, dated as of January 26, 2021 (the “Amended
and Restated Restricted ADS Letter Agreement”), by and between the Company and the Depositary. Capitalized terms used but not
defined herein shall have the meanings given to them in the Deposit Agreement, or, in the event so noted herein, in the Amended and Restated
Restricted ADS Letter Agreement.
In
connection with the transfer of the Restricted ADSs surrendered herewith (the “Surrendered Restricted ADSs”) to the
person(s) specified in Schedule I hereto, the undersigned Holder certifies that:
(CHECK ONE)
(a) The
Surrendered Restricted ADSs are being transferred to a person who the undersigned Holder reasonably believes is a “Qualified Institutional
Buyer” (within the meaning of Rule 144A under the Securities Act) for the account of a Qualified Institutional Buyer in a
transaction meeting the requirements of Rule 144A under the Securities Act and the transferee is acquiring the Surrendered Restricted
ADSs for investment purposes only without a view to distribution.
OR
(b) The
Surrendered Restricted ADSs are being transferred to a person other than a U.S. Person (as defined in Regulation S under the Securities
Act) in an offshore transaction meeting the requirements of Regulation S under the Securities Act and the transferee is acquiring the
Surrendered Restricted ADSs for investment purposes without a view to distribution.
If
neither of the items above is checked, the Depositary shall not be obligated to register the Surrendered Restricted ADSs in the name
of any person other than the Holder thereof unless and until the conditions to any such transfer or registration set forth in the Deposit
Agreement and the Amended and Restated Restricted ADS Letter Agreement shall have been satisfied (including, without limitation, the
delivery of an opinion of U.S. securities counsel).
*
Please insert applicable CUSIP # prior to completion and delivery. General RADSs – CUSIP # 90138A 99 6 / Convertible
Bond RADSs – CUSIP # 90138A 88 9.
The
transferor confirms that applicable taxes and expenses payable in connection the transfer of ADSs under the terms of the Deposit Agreement
and the Amended and Restated Restricted ADS Letter Agreement is being made to the Depositary concurrently herewith.
The
transferee has and, if acting on behalf of the Beneficial Owner, such Beneficial Owner has agreed to take a Restricted ADSs identical
to the Restricted ADSs surrendered for transfer and subject to the same restrictions on transfer set forth in the Amended and Restated
Restricted ADS Letter Agreement.
MEDALLION GUARANTEE
Medallion
Guarantee Stamp (Notary public seal is not acceptable)
Name of Firm Issuing
Guarantee: |
|
Authorized Signature
of Officer: |
|
Title of Officer
Signing This Guarantee: |
|
Area Code and Telephone
Number: |
|
The signature(s) above
must be guaranteed by an Eligible Guarantor Institution that is a member in good standing of a recognized Medallion Signature Guarantee
Program approved by The Securities Transfer Association, Inc.
The signature(s) must
be stamped with a Medallion Signature Guarantee by a qualified financial institution, such as a commercial bank, savings bank, savings
and loan institutions, U.S. stock broker and security dealer, or credit union, that is participating in an approved Medallion Signature
Guarantee Program. A NOTARY PUBLIC SEAL IS NOT ACCEPTABLE.
SCHEDULE 9
ISSUER CONSENT LETTER
VNET Group, Inc.
Guanjie Building Southeast 1st Floor
10# Jiuxianqiao East Road
Chaoyang District, Beijing 100016
People’s Republic of China
[Date]
Securities Services Operations, Citibank Hong Kong
9/F Citi Tower
One Bay East
83 Hoi Bun Road
Kwun Tong, Kowloon, Hong Kong.
Citibank, N.A., as depositary 388 Greenwich Street
New York, NY10013
Attn: ADR Department
Ladies and Gentlemen:
VNET Group, Inc. (the
“Company”) hereby consents to the deposit into the ADR facility existing under the terms of the Deposit Agreement,
dated as of April 20, 2011 (the “Deposit Agreement”), by and among the Company, Citibank, N.A., as Depositary,
and the Holders and Beneficial Owners of American Depositary Shares issued thereunder, by the person(s) listed below of the Shares
set forth opposite their name (none of which are “Restricted Securities” within the meaning given to such term in the Deposit
Agreement).
VNET Group, Inc. |
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By: |
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Name: |
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Title: |
|
SCHEDULE 10
CONFIRMATION LETTER FOR SHARE TRANSFERS
VNET Group, Inc.
Guanjie Building Southeast 1st Floor
10# Jiuxianqiao East Road
Chaoyang District, Beijing 100016
People’s Republic of China
| To: | Maples
Fund Services (Cayman) Limited c/o Maples Fund Services (Asia) Limited
16th Floor,
Central Plaza, 18 Harbour Road, Wanchai, |
Hong Kong
Attn: Chris Liu/ Tim Lee/ Gary Lau
Date:
Dear Sirs,
VNET Group, Inc. (the “Company”)
Transfer of Class A Ordinary Shares
I hereby confirm, on behalf of the board of directors
of the Company, that you are instructed to register the transfer of Class A ordinary shares of the Company from the transferor(s) listed
in Exhibit A attached hereto to the transferees listed in Exhibit A attached hereto, upon receipt of the relevant signed instruments
of transfer and without seeking further confirmation on the respective transfer.
The Company will issue new share certificates
accordingly. A copy of the executed share certificate will be provided for your records.
The use of this letter was approved by written
resolutions of the directors of the Company passed on 23 September 2011.
Yours faithfully, |
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Name: |
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Title: |
Director |
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For and on behalf of the Company |
|
Exhibit A
Transferor(s) |
Transferee(s) |
Share Certificate No. |
Number
of Class A Ordinary Shares |
|
|
|
|
SCHEDULE 11
OFFICER’S CERTIFICATE
I, [●] of VNET Group, Inc., an exempted
company with limited liability incorporated under the laws of the Cayman Island (the “Company”), do hereby certify that:
(a) A
registration has been made in the share register in the name of Citi (Nominees) Limited for [●] Class A ordinary shares, which
shares are represented by Certificate No. [●] registered in the name of Citi (Nominees) Limited, as depositary (the“Depositary”).
(b) Attached
hereto as Exhibit A is a true, correct and complete specimen of the certificate representing Class A ordinary shares of the
Company duly authorized and validly issued in accordance with the constituent documents of the Company.
(c) The
Class A ordinary shares referred to above are being deposited in accordance with the Deposit Agreement, dated as of April 20,
2011 by and among the Company, the Depositary and all Holders and Beneficial Owners of American Depositary Shares issued thereunder.
(d) Attached
hereto as Exhibit B is a true and correct extract from Maples Fund Services (Asia) Limited showing the Depositary as a member of
the Company reflecting all Class A ordinary shares heretofore issued to the Depositary, and not otherwise cancelled by the Depositary,
including, without limitation, those Class A ordinary shares referred to in (a) above.
IN
WITNESS WHEREOF, I have duly executed and delivered this Officer’s Certificate dated of , 20 .
VNET Group, Inc. |
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By: |
|
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Name: |
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Title: |
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SCHEDULE 12
CONSENT AND DELIVERY INSTRUCTION - COMPANY
[●][●],
20[●]
Citibank, N.A. - ADR Department
388 Greenwich Street
New York, New York 10013
Attn: Account Management
VNET Group, Inc. (CUSIP # )
*
Dear Sirs:
Reference
is hereby made to (i) the Deposit Agreement, dated as of April 20, 2011, as amended and supplemented from time to time (the
“Deposit Agreement”), by and among VNET Group, Inc. (the “Company”), Citibank, N.A., as Depositary
(the “Depositary”), and all Holders and Beneficial Owners of American Depositary Shares (the “ADSs”)
issued thereunder, and (ii) the Amended and Restated Restricted ADS Letter Agreement, dated as of January 26, 2021 (the “Amended
and Restated Restricted ADS Letter Agreement”), by and between the Company and the Depositary. Capitalized terms used but not
defined herein shall have the meanings given to them in the Deposit Agreement, or, in the event so noted herein, in the Amended and Restated
Restricted ADS Letter Agreement.
The
Company hereby deposits the Designated Shares specified in Schedule I hereto on behalf of the specified beneficial owners thereof
and hereby consents to the issuance by the Depositary of the corresponding Designated Restricted ADSs (as defined in the Amended and
Restated Restricted ADS Letter Agreement).
The
Company hereby represents and warrants to the Depositary that (a) the Designated Shares (as defined in the Amended and Restated
Restricted ADS Letter Agreement) being deposited for the purpose of the issuance of Designated Restricted ADSs are validly issued, fully
paid and non-assessable, and free of any preemptive rights of the holders of outstanding Shares, (b) the deposit of the specified
Designated Shares and the issuance and delivery of Designated Restricted ADSs in respect thereof, in each case upon the terms contemplated
in the Amended and Restated Restricted ADS Letter Agreement, will not, as of the time of such deposit and issuance, require registration
under the Securities Act, (c) all approvals required by Cayman Islands law to permit the deposit of the specified Designated Shares
under the Deposit Agreement and the Amended and Restated Restricted ADS Letter Agreement have been obtained prior to the deposit of the
specified Designated Shares, (d) the Designated Shares are of the same class as, and rank pari passu with, the other Shares
on deposit under the Deposit Agreement, and (e) the specified beneficial owners of the Designated Shares specified on Schedule I
hereto will be the Beneficial Owners of the corresponding Designated Restricted ADSs immediately following the deposit of the Designated
Shares.
The
Company confirms that payment of the applicable fees, taxes and expenses payable under the terms of the Deposit Agreement and the Amended
and Restated Restricted ADS Letter Agreement upon the deposit of Shares and issuance of ADSs is being made to the Depositary concurrently
herewith.
The
Company has caused this Consent and Delivery Instruction to be executed and delivered on its behalf by their respective officers thereunto
duly authorized as of the date set forth above.
*
Please insert applicable CUSIP # prior to completion and delivery. General RADSs – CUSIP # 90138A 99 6 / Convertible
Bond RADSs – CUSIP # 90138A 88 9.
|
VNET Group, Inc. |
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By: |
|
Name: |
|
Title: |
Schedule I
Designated
Shares |
Designated
Restricted ADSs |
Name
and Address of
Beneficial Owner of Designated
Restricted ADSs |
Shares |
ADSs |
|
SCHEDULE 13
SHARE CONVERSION FORM
The undersigned, (the “B Shareholder”),
hereby elects to convert Class B Ordinary Shares standing in its name in the company called VNET Group, Inc. (the “Company”)
into an equal number of Class A Ordinary Shares of the Company. The original share certificate in the name of the B Shareholder,
if any, is enclosed for the Company’s cancellation.
Signed
by the B Shareholder: |
|
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Name of B Shareholder |
|
Dated: 20
The parties
hereto have executed and delivered this Deed the day and year first above written.
THE CHARGOR |
|
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|
|
EXECUTED
and DELIVERED
as a deed by CHEN SHENG
, its authorised director
for and on behalf of
SUNRISE CORPORATE HOLDING
LTD. |
)
)
)
)
)
)
) |
/s/ CHEN SHENG
Signature of director
Name: CHEN SHENG |
[Execution Page –
Share Charge (BVI-3 – Listco) –BVI-3]
THE INVESTOR |
|
|
|
|
|
EXECUTED
and DELIVERED
as a deed by Wang
Peng
, its authorised signatory
for and on behalf of
SHINING RICH HOLDINGS
LIMITED
耀富控股有限公司 |
)
)
)
)
)
)
)
) |
/s/ Wang Peng
Signature of authorised
signatory
Name: Wang Peng |
[Execution Page –
Share Charge (BVI-3 – Listco) – Investor]
Exhibit 99.28
EXECUTION VERSION
Dated 5th
day of July 2024 |
CHEN SHENG
(陈升)
as Chargor
IN FAVOUR OF
SHINING RICH HOLDINGS
LIMITED
耀富控股有限公司
as Investor
|
CHARGE
OVER SHARES
in relation to shares
in
GENTAO CAPITAL LIMITED
|
THIS
DEED is made on the 5th day of July 2024
BY:
CHEN
SHENG ( 陈 升 ), a citizen of the PRC with passport number
[*****] and PRC Identity Card number [*****] and domiciled in the PRC (the “Chargor”)
IN FAVOUR OF:
SHINING
RICH HOLDINGS LIMITED 耀富控股有限公司,
a BVI business company incorporated under the laws of the British Virgin Islands with limited liability with company number 1972405 and
with its registered office at Portcullis Chambers, 4th Floor Ellen Skelton Building, 3076 Sir Francis Drake Highway, Road Town, Tortola,
British Virgin Islands VG1110 (the “Investor”).
(The parties
referred above shall collectively be referred to as the “Parties” and each a “Party”.)
NOW THIS DEED WITNESSES
as follows:
| 1. | DEFINITIONS
AND INTERPRETATION |
Unless otherwise defined in this Deed
or unless the context otherwise requires, terms and expressions defined in or construed for the purposes of the Subscription Agreement
as amended from time to time shall bear the same meanings when used herein. In addition:
“Issuer” means GenTao
Capital Limited, a BVI business company incorporated under the laws of the British Virgin Islands with limited liability with company
number 1759132 and with its registered office at Vistra Corporate Services Centre, Wickhams Cay II, Road Town, Tortola, VG1110, British
Virgin Islands.
“BVI Act” means
the British Virgin Islands Business Companies Act 2004, as amended and/or supplemented from time to time.
“Charged Property”
means: (a) the Share Collateral (and any part of them); and (b) the Related Rights in relation to the Share Collateral of the
Chargor which from time to time are the subject of the security created or expressed to be created in favour of the Investor by or pursuant
to this Deed.
“Collateral Rights”
means all rights, powers and remedies of the Investor provided by or pursuant to this Deed or by law.
“Delegate” means
any delegate, agent, attorney or co-trustee appointed by the Investor or a Receiver.
“Event of Default”
has the meaning given to the term “Event of Default” under the Note Instrument.
“Guarantor” means
the Chargor.
“Receiver” means
a receiver or receiver and manager or an administrative receiver of the whole or any part of the Charged Property and that term will
include any appointee under a joint and/or several appointment.
“Related Rights”
means, in relation to any asset:
| (a) | the
proceeds of sale of any part of that asset; |
| (b) | all
rights under any licence, agreement for sale, lease or other disposal in respect of that
asset; |
| (c) | all
rights, powers, benefits, claims, contracts, warranties, remedies, security, guarantees,
indemnities and/or covenants for title in respect of that asset; |
| (d) | any
moneys and proceeds paid or payable in respect of that asset; |
| (e) | (in
the case where such asset comprises any share, equity interest or other security) all dividends,
distributions, interest and monies payable in respect thereof and any rights, assets, shares
and/or securities deriving therefrom or accruing thereto whether by way of redemption, bonus,
preference, option, substitution, conversion, compensation or otherwise; and/or |
| (f) | (in
the case where such asset comprises any share, equity interest or other security) any rights
against any clearing system in which such asset is held, |
(in each case) from time to time.
“Secured Obligations”
means all obligations at any time due, owing or incurred by any of the Obligors or any of their respective Affiliates, to the Investor
under the Transaction Documents, whether present or future, actual or contingent (and whether incurred solely or jointly and whether
as principal or surety or in some other capacity).
“Security Interest”
means:
| (a) | an
interest or power reserved in or created or otherwise arising in or over an interest in any
asset whether under a bill of sale, mortgage, charge, lien, pledge, other security interest
or preferential arrangement (including retention of title), trust or power or otherwise by
way of, or having similar commercial effect to, security for the payment of a debt, any other
monetary obligation or the performance of any other obligation; or |
| (b) | any
agreement to grant or create anything referred to in either of paragraph (a) of this
definition and any other thing which gives a creditor priority to any other creditor with
respect to any asset or an interest in any asset. |
“Security Period”
means the period from and including the date of execution of this Deed to and including the date of discharge of the security created
by this Deed in accordance with Clause 18 (Release of Security).
“Shares” means all
present and future issued share(s) of the Company, including the shares issued as at the date of this Deed specified in Schedule
1 (Particulars of Shares).
“Share Collateral”
means the Shares beneficially owned by the Chargor and/or any substitute or additional Shares thereof from time to time, while any Secured
Obligations are outstanding.
“Subscription Agreement”
means the subscription agreement dated _____________________2024 entered into between (among others) the Issuer as issuer, the Guarantor
as guarantor and the Investor as investor, pursuant to which, the Issuer agrees to issue to the Investor, and the Investor agrees to
subscribe from the Issuer, the Note (as supplemented, modified or amended from time to time).
“Triggering Event”
means the delivery by the Investor of a written notice in accordance with Clause 28 (Notices) to the Chargor that an Event of
Default has occurred.
In this Deed:
| 1.2.1 | the rules of
construction set out in clause 1.2 of the Subscription Agreement shall apply to this Deed
mutatis mutandis; and |
| 1.2.2 | any reference
to the Chargor and the Investor shall be construed so as to include its or their (and any
subsequent) successors and any permitted assigns and transferees in accordance with their
respective interests. |
The Chargor hereby covenants with the
Investor to discharge each of the Secured Obligations on their due date in accordance with their respective terms.
| (a) | The Chargor
hereby charges as legal and beneficial owner in favour of the Investor, as security for the
payment and discharge of the Secured Obligations, by way of first fixed charge, all the Chargor’s
right, title and interest from time to time in and to the Share Collateral and all its other
present and future Related Rights in relation thereto. |
| (b) | The Chargor
hereby authorises the Investor to arrange at any time following the occurrence of an Event
of Default which is continuing for the Charged Property or any part thereof to be registered
in the name of the Investor (or its nominee) thereupon to be held, as so registered, subject
to the terms of this Deed and at the request of the Investor, the Chargor shall without delay
procure that the foregoing shall be done. |
4.1 | The Chargor shall procure that the following annotation
be inserted into the register of members (the “Register of Members”) of
the Company maintained by it in accordance with the BVI Act: |
“All the ordinary share registered
in the name of Sheng Chen (陈升) are charged in favour
of Shining Rich Holdings Limited 耀富控股有限公司
pursuant to a share charge dated [Date], as amended from time to time. The date on which this annotation was entered in the
Register of Members is [Date].”
Immediately upon entry of such details
has been made, and in any event within five (5) Business Days after the date of this Deed, provide a certified true copy of the
annotated Register of Members to the Investor.
4.2 | Delivery of Documents of Title |
The Chargor shall:
| 4.2.1 | on the
date of this Deed, deposit with the Investor (or procure the deposit with the Investor of)
the following in respect of any Share Collateral existing as at the date of this Deed: |
| (a) | all original
certificates or other documents of title to such Share Collateral (including a certified
copy of the Register of Members to be certified by director, company secretary or legal counsel
of the Company); |
| (b) | undated share
transfer forms in respect of such Share Collateral, executed in blank by or on behalf of
the Chargor and other documents which may be requested by the Investor from time to time
in order to enable the Investor or its nominees to be registered as the owner or otherwise
obtain legal title to any of the Charged Property in the form set out in Schedule 2 (Forms
of Instrument of Transfer); |
| (c) | undated irrevocable
proxy and power of attorney in respect of such Shares, executed in blank by or on behalf
of the Chargor in the form set out in Schedule 3 (Form of Irrevocable Proxy and Power
of Attorney); |
| (d) | an undated
letter of resignation executed by each director of the Company in substantially the form
set out in Schedule 4 (Form of Letter of Resignation); |
| (e) | undated written
resolutions of the board of directors of the Company executed by all of the directors of
the Company in substantially the form set out in Schedule 5 (Form of Written Resolutions); |
| (f) | a dated letter
of undertaking and authorisation executed by each director of the Company in substantially
the form set out in Schedule 6 (Form of Letter of Undertaking and Authorisation); |
| (g) | a dated letter
of instruction executed by or on behalf of the Company to its registered agent in respect
of the Register of Members of the Company substantially in the form set out in Schedule 7
(Form of Letter to Registered Agent from the Company) which shall be delivered
by, or on behalf of, the Company to the registered agent and acknowledged by the registered
agent promptly following execution of this Deed and in any event no more than five (5) Business
Days after the date of this Deed; and |
| (h) | a dated deed
of undertaking and confirmation executed by or on behalf of the Company substantially in
the form set out in Schedule 8 (Form of Deed of Undertaking and Confirmation from
the Company). |
| 4.2.2 | promptly
and, in any event, within five (5) Business Days of any acquisition of any Shares and/or
upon any Shares becoming subject to security hereunder and/or the accrual, issue or coming
into existence of any stocks, shares, warrants or other securities in respect of or derived
from any Shares, notify the Investor of that occurrence and procure the delivery to the Investor
of: |
| (a) | a certified
true copy of the updated register of members of the Company, together with all original certificates
and other documents of title representing such items; and |
| (b) | undated share
transfer forms or, as the case may be, other appropriate instruments of transfer in respect
of such items executed in blank by or on behalf of the Chargor, substantially in the form
set out in Schedule 2 (Form of Instrument Transfer) (if applicable) or in such
other form as the Investor shall require, |
(except already delivered pursuant to this Clause 4.2).
| 4.2.3 | promptly
upon any change in any director of the Company after the date of this Deed, procure the delivery
to the Investor of: |
| (a) | (in the case
of a new director) an undated letter of resignation executed by such director of the Company
in substantially the form set out in Schedule 4 (Form of Letter of Resignation); |
| (b) | undated written
resolutions of the board of directors of the Company executed by all of the directors of
the Company in substantially the form set out in Schedule 5 (Form of Written Resolutions); |
| (c) | (in the case
of a new director) an undated undertaking and authorisation executed by such director of
the Company in substantially the form set out in Schedule 6 (Form of Letter of Undertaking
and Authorisation); |
| (d) | (in the case
of a director who was the signatory of the letter of instruction referred to in Clause 4.2.1(g) on
behalf of the Company) a dated letter of instruction executed by a remaining director (or,
where a new director is simultaneously appointed, the new director) on behalf of the Company
to its registered agent in respect of the Register of Members of the Company substantially
in the form set out in Schedule 7 (Form of Letter to Registered Agent from the Company)
which shall be delivered by, or on behalf of, the Company to the registered agent and acknowledged
by the registered agent; and |
| (e) | (in the case
of a director who was the signatory of the deed of undertaking and confirmation referred
to in Clause 4.2.1(h) on behalf of the Company) a dated deed of undertaking and confirmation
executed by a remaining director (or, where a new director is simultaneously appointed, the
new director) on behalf of the Company substantially in the form set out in Schedule 8 (Form of
Deed of Undertaking and Confirmation from the Company). |
| 4.2.4 | promptly
upon any change in the registered agent of the Company after the date of this Deed, procure
the delivery to the Investor of a dated letter of instruction executed by or on behalf of
the Company to its new registered agent in respect of the Register of Members of the Company
substantially in the form set out in Schedule 7 (Form of Letter to Registered Agent
from the Company) which shall be delivered by the Company to the new registered agent
and acknowledged by the new registered agent promptly following delivery of such letter of
instruction. |
5.1 | Further Assurance: General |
The Chargor shall promptly at its own
cost do all such acts and/or execute all such documents (including without limitation assignments, transfers, mortgages, charges, notices
and instructions) as the Investor may reasonably specify (and in such form as the Investor may reasonably require the Chargor to act/execute
in favour of the Investor or its nominee(s)):
| 5.1.1 | to perfect
the security created or intended to be created in respect of the Charged Property (which
may include, without limitation, the execution by the Chargor of a mortgage, charge or assignment
over all or any of the assets constituting, or intended to constitute, any part of the Charged
Property) or for the exercise of the Collateral Rights; and/or |
| 5.1.2 | after
the occurrence of a Triggering Event, to deliver or procure that there shall be delivered
to the Investor all other documents the Investor considers necessary or desirable to enable
the Investor to register such Charged Property in its name or in the name of its nominees
or any delegate and to facilitate the realisation of the Charged Property. |
The Chargor shall from time to time
take all such action (whether or not requested to do so by the Investor) as is or shall be reasonably available to it (including without
limitation obtaining and/or effecting all approvals) as may be necessary for the purpose of the creation, perfection, protection or maintenance
of any security conferred or intended to be conferred on the Investor by or pursuant to this Deed and/or to exercise its rights and to
perform the obligations expressed on its part under this Deed and/or to make this Deed admissible in evidence in any court having jurisdiction.
The Chargor shall promptly deliver
to the Investor all information that is available to it and that is required in order for the Investor to comply with any applicable
laws or regulations in respect of any Charged Property, or any similar provision in any articles of association or constitutional documents
relating to any Charged Property.
5.4 | Implied Covenants for Title |
The obligations of the Chargor under
this Deed shall be in addition to any covenants for title deemed to be included in this Deed under applicable law.
6. | NEGATIVE PLEDGE AND OTHER UNDERTAKINGS |
The Chargor undertakes that it shall
not, at any time during the subsistence of this Deed, create or permit to subsist any Security over all or any part of the Charged Property
unless expressly permitted under and in accordance with any of the Transaction Documents.
6.2 | No Disposal of Interests |
The Chargor undertakes that, during
the subsistence of this Deed, it shall not, and shall not agree to, except with the prior written consent of the Investor:
| 6.2.1 | sell,
assign, transfer or otherwise dispose of any Charged Property; |
| 6.2.2 | procure
or permit the Company to issue any new shares; |
| 6.2.3 | appoint
any new director, or otherwise effect any change of director, of the Company; or |
| 6.2.4 | otherwise
procure or permit a change of control over the Company or any Share Collateral. |
7. | OPERATIONS BEFORE AND AFTER TRIGGERING EVENT |
| 7.1.1 | The Chargor
shall, at all times prior to the giving of a notice in writing by the Investor to the Chargor
(a “Triggering Event”) that an Event of Default has occurred, ensure that
all dividends paid or made in respect of any Charged Property are applied in accordance with
the terms of the Subscription Agreement. |
| 7.1.2 | After
the occurrence of a Triggering Event, the Chargor shall promptly pay over and deliver to
the Investor for application in accordance with this Deed (and the Investor may apply in
accordance with this Deed) any and all dividends, distributions, interest and/or other monies
received and/or recovered by it in respect of all or any part of the Charged Property. |
| 7.1.3 | Any and
all dividends, distributions, interest and/or other monies received, recovered or paid/delivered
to the order of the Chargor (other than in cash) in respect of any or all of the Charged
Property shall be held by the Chargor subject to the security constituted by this Deed, and
the Chargor shall promptly deliver such dividends, distributions, interest and/or other monies
to the Investor for application in accordance with this Deed. |
7.2 | Operation: Before Triggering Event |
Prior to the occurrence of a Triggering
Event, the Chargor shall be entitled to exercise all voting rights in relation to any or all of the Share Collateral and (if applicable)
additional shares provided that the Chargor shall not exercise such voting rights in any manner that could give rise to, or otherwise
permit or agree to, any (a) variation of the rights attaching to or conferred by any of the Share Collateral and (if applicable)
additional shares or (b) any liability on the part of the Investor.
7.3 | Operation: After Triggering Event |
The Investor may, upon and/or after
the occurrence of a Triggering Event, at its discretion (in the name of the Chargor or otherwise and without any further consent or authority
from the Chargor):
| 7.3.1 | exercise
(or refrain from exercising) any voting rights in respect of the Charged Property; |
| 7.3.2 | apply
all dividends, distributions, interest and other monies arising from all or any of the Charged
Property in accordance with Clause 12 (Application of Monies); |
| 7.3.3 | have the
right to complete, date and put into effect any documents referred to in Clause 4.2 (Delivery
of Documents of Title); |
| 7.3.4 | transfer
all or any of the Charged Property into the name of such nominee(s) of the Investor
as it shall think fit; and |
| 7.3.5 | exercise
(or refrain from exercising) the powers and rights conferred on or exercisable by the legal
or beneficial owner of the Charged Property, including without limitation the right, in relation
to any company, corporation or entity whose shares, equity interests or other securities
are included in the Charged Property or any part thereof, to concur or participate in: |
| (a) | the reconstruction,
amalgamation, sale or other disposal of such company, corporation or entity or any of its
assets or undertaking (including without limitation the exchange, conversion or reissue of
any shares, equity interests or securities as a consequence thereof); |
| (b) | the release,
modification or variation of any rights or liabilities attaching to such shares, equity interests
or securities; and |
| (c) | the exercise,
renunciation or assignment of any right to subscribe for any shares, equity interests or
securities, |
in each case in such manner and on such
terms as the Investor may think fit, and the proceeds of any such action shall form part of the Charged Property and may be applied by
the Investor in accordance with Clause 12 (Application of Monies).
The Chargor shall pay when due all
calls or other payments which may be or become due in respect of any of the Charged Property, and in any case of default by the Chargor
in such payment, the Investor may, if it thinks fit, make such payment on behalf of the Chargor in which case any sums paid by the Investor
shall be reimbursed by the Chargor to the Investor on demand and shall carry interest from the date of payment by the Investor until
reimbursed in full at the rate and in accordance with condition 8.4 (Default Interest) of the Note Instrument as if it were an
Unpaid Sum thereunder.
| 7.5.1 | The Chargor
shall not exercise any of its rights and powers in relation to any of the Charged Property
in any manner which, in the opinion of the Investor, would prejudice the value of, or the
ability of the Investor to realise, the security created by this Deed. |
| 7.5.2 | The Investor
shall not have any duty to ensure that any dividends, interest or other monies and assets
receivable in respect of the Charged Property are duly and punctually paid, received or collected
as and when the same become due and payable or to ensure that the correct amounts (if any)
are paid or received on or in respect of the Charged Property or to ensure the taking up
of any (or any offer of any) stocks, shares, rights, monies or other property paid, distributed,
accruing or offered at any time by way of redemption bonus, rights, preference, or otherwise
on or in respect of, any of the Charged Property. |
| 7.5.3 | The Chargor
shall not at any time during the Security Period exercise the right to nominate any person
other than the Investor or the nominee(s) of the Investor to enjoy or exercise any right
relating to any of the Charged Property. |
| 8. | ENFORCEMENT
OF SECURITY |
Upon and after the occurrence of a
Triggering Event or if the Chargor requests the Investor to exercise any of its powers under this Deed, the security created by or pursuant
to this Deed is immediately enforceable and the Investor may, with prior notice to the Chargor or prior authorisation from any court,
in its absolute discretion:
| 8.1.1 | enforce
all or any part of such security (at the times, in the manner and on the terms it thinks
fit) and take possession of and hold or dispose of all or any part of the Charged Property;
and |
| 8.1.2 | whether
or not it has appointed a Receiver, exercise all or any of the powers, authorities and discretions
conferred by this Deed on any Receiver or otherwise conferred by law on mortgagees and/or
Receivers. |
| 8.2 | No
Liability as Mortgagee in Possession |
Neither the Investor nor any Receiver
shall be liable to account as a mortgagee in possession in respect of all or any part of the Charged Property or be liable by reason
of taking any action permitted by this Deed or for any loss upon realisation or for any neglect, default or omission in connection with
the Charged Property to which a mortgagee or a mortgagee in possession might otherwise be liable, unless in each case, directly caused
by its wilful misconduct.
The power of sale or other disposal
conferred on the Investor and on any Receiver by this Deed shall arise (and the Secured Obligations shall be deemed due and payable for
that purpose) on execution of this Deed and shall be exercisable in accordance with Clause 8.1 (Enforcement) and any applicable
law or regulation.
Any restrictions imposed by law on
the power of sale or on the consolidation of security (including without limitation any restriction under paragraph 11 of the Fourth
Schedule to the Conveyancing and Property Ordinance (Chapter 219 of the Laws of Hong Kong) shall be excluded to the fullest extent permitted
by law.
| 10. | APPOINTMENT
OF RECEIVER |
| 10.1 | Appointment
and Removal |
Upon and after the occurrence of a
Triggering Event or if requested to do so by the Chargor, the Investor shall have the right by deed or otherwise (acting through an authorised
officer of the Investor), without prior notice to the Chargor:
| 10.1.1 | appoint
one or more persons to be a Receiver over the whole or any part of the Charged Property; |
| 10.1.2 | appoint
two or more Receivers of separate parts of the Charged Property; |
| 10.1.3 | remove
(so far as it is lawfully able) any Receiver so appointed; and/or |
| 10.1.4 | appoint
another person(s) as an additional or replacement Receiver(s). |
| 10.2 | Capacity
of Receivers |
Each person appointed to be a Receiver
pursuant to Clause 10.1 (Appointment and Removal) shall be:
| 10.2.1 | entitled
to act individually or together with any other person appointed or substituted as Receiver; |
| 10.2.2 | for all
purposes deemed to be the agent of the Chargor which shall be solely responsible for his
acts, defaults and liabilities and for the payment of his remuneration and no Receiver shall
at any time act as agent for the Investor; and |
| 10.2.3 | entitled
to remuneration for his services at a rate to be fixed by the Investor from time to time. |
If at any time there is more than one
Receiver, each Receiver may separately exercise all of the powers conferred by this Deed and to the exclusion of any other Receiver (unless
the document appointing such Receiver states otherwise).
| 10.4 | Statutory
Powers of Appointment |
The powers of appointment of a Receiver
herein contained shall be in addition to all statutory and other powers of appointment of the Investor under applicable law and such
powers shall remain exercisable from time to time by the Investor in respect of all or any part of the Charged Property.
Every Receiver shall (subject to any
restrictions in the instrument appointing him but notwithstanding any winding-up or dissolution of the Chargor) have and be entitled
to exercise, in relation to the Charged Property (and any assets of the Chargor which, when got in, would be Charged Property) or that
part thereof in respect of which he was appointed, and as varied and extended by the provisions of this Deed (in the name of or on behalf
of the Chargor or in his own name and, in each case, at the cost of the Chargor):
| 11.1.1 | all the
powers conferred by the Conveyancing and Property Ordinance (Chapter 219 of the Laws of Hong
Kong) on mortgagors and on mortgagees in possession and on receivers appointed under that
Ordinance (as if the Charged Property constituted property that is subject to that Ordinance
and as if such Receiver were appointed under that Ordinance), free from any limitation under
paragraph 11 of the Fourth Schedule to that Ordinance; |
| 11.1.2 | all rights,
powers and discretions conferred by this Deed (either expressly or impliedly) or by law on
the Chargor; |
| 11.1.3 | all the
powers and rights of an absolute owner and power to do or omit to do anything which the Chargor
itself could do or omit to do; and |
| 11.1.4 | the power
to do all things (including without limitation bringing or defending proceedings in the name
or on behalf of the Chargor) which seem to that Receiver to be incidental or conducive to
(a) any of the functions, powers, authorities or discretions conferred on or vested
in him or (b) the exercise of any Collateral Rights (including without limitation realisation
of all or any part of the Charged Property) or (c) bringing to his hands any assets
of the Chargor forming, or which, when got in, would be part of the Charged Property. |
| 11.2 | Additional
Powers of Receiver |
In addition to and without prejudice
to the generality of the foregoing, every Receiver shall (subject to any limitations or restrictions expressed in the instrument appointing
him but notwithstanding any winding-up or dissolution of the Chargor) have the following powers in relation to the Charged Property (and
any assets of the Chargor which, when got in, would be part of the Charged Property) in respect of which he was appointed (and every
reference in this Clause 11.2 to the “Charged Property” shall be read as a reference to that part of the Charged Property
in respect of which such Receiver was appointed):
power to enter upon, take immediate possession
of, collect and get in the Charged Property including without limitation dividends and other income whether accrued before or after the
date of his appointment;
| 11.2.2 | Proceedings
and Claims |
power to bring, prosecute, enforce, defend
and abandon applications, claims, disputes, actions, suits and proceedings in connection with all or any part of the Charged Property
or this Deed in the name of the Chargor or in his own name and to submit to arbitration, negotiate, compromise and settle any such applications,
claims, disputes, actions, suits or proceedings;
power to carry on and manage, or concur
in the carrying on and management of or to appoint a manager of, the whole or any part of the Charged Property or any business relating
thereto in such manner as he shall in his absolute discretion think fit;
power to appoint, hire and employ officers,
employees, contractors, agents, advisors and others for any of the purposes of this Deed and/or to guard or protect the Charged Property
upon terms as to remuneration or otherwise as he may think fit and to discharge any such persons and any such persons appointed, hired
or employed by the Chargor;
power to give a valid receipt for any
monies and execute any assurance or thing which may be proper or desirable for realising any Charged Property;
| 11.2.6 | Deal
with Charged Property |
power, in relation to the Charged Property
and each and every part thereof, to sell, transfer, convey, dispose of or concur in any of the foregoing by the Chargor or any other
receiver or manager of the Chargor (including without limitation to or in relation to the Investor) in such manner and generally on such
terms as he thinks fit , and the consideration for any such transaction may consist of cash, debentures or other obligations, shares,
stock or other valuable consideration and any such consideration may be payable in a lump sum or by instalments spread over any period
which the Receiver thinks fit;
power to purchase, lease, hire or otherwise
acquire any assets or rights of any description which he shall in his absolute discretion consider necessary or desirable for the carrying
on, improvement or realisation of the whole or any part of the Charged Property or otherwise for the benefit of the whole or any part
of the Charged Property;
power to promote, procure the formation
or otherwise acquire the share capital of, any body corporate with a view to such body corporate becoming a subsidiary of the Chargor
or otherwise and purchasing, leasing or otherwise acquiring an interest in the whole or any part of the Charged Property or carrying
on any business in succession to the Chargor or any subsidiary of the Chargor;
power to delegate his powers in accordance
with this Deed; 11.2.10Insurance
power to effect, maintain or renew indemnity
and other insurances and to obtain bonds and performance guarantees and do any other act which the Chargor might do in the ordinary conduct
of its business to protect or improve any Charged Property;
power to raise or borrow money from the
Investor or any other person to rank either in priority to the security constituted by this Deed or any part of it or otherwise and with
or without a mortgage or charge on the Charged Property or any part of it on such terms as he shall in his absolute discretion think
fit (and no person lending such money shall be concerned to see or enquire as to the propriety or purpose of the exercise of such power
or the application of money so raised or borrowed);
| 11.2.12 | Redemption
of Security |
power to redeem, discharge or compromise
any security whether or not having priority to the security constituted by this Deed or any part of it;
| 11.2.13 | Covenants,
Guarantees and Indemnities |
power to enter into bonds, covenants,
guarantees, commitments, indemnities and other obligations or liabilities as he shall think fit, to make all payments needed to effect,
maintain or satisfy such obligations or liabilities and to use the company seal of the Chargor;
power to appoint an attorney or solicitor
or accountant or other professionally qualified person to assist him in the performance of his functions;
power to make any payment which is necessary
or incidental to the performance of his functions; and
| 11.2.16 | Exercise
of Powers in Chargor’s Name |
power to exercise any or all of the above
powers on behalf of and in the name of the Chargor (notwithstanding any winding-up or dissolution of the Chargor) or on his own behalf.
In making any sale or other disposal
of all or any part of the Charged Property or any acquisition in the exercise of their respective powers (including without limitation
a disposal by a Receiver to any subsidiary of the Chargor or other body corporate as is referred to in Clause 11.2.8 (New Subsidiary)),
a Receiver or the Investor may accept or dispose of as, and by way of consideration for, such sale or other disposal or acquisition,
cash, shares, loan capital or other obligations, including without limitation consideration fluctuating according to or dependent upon
profit or turnover and consideration the amount whereof is to be determined by a third party. Any such consideration may, if thought
expedient by the Receiver or the Investor, be nil or may be payable or receivable in a lump sum or by instalments. Any contract for any
such sale, disposal or acquisition by the Receiver or the Investor may contain conditions excluding or restricting the personal liability
of the Receiver or the Investor.
| 11.4 | Relationship
with Investor |
To the fullest extent allowed by law,
any right, power or discretion conferred by this Deed (either expressly or impliedly) or by law on a Receiver may after the Security
conferred or intended to be conferred on the Investor by or pursuant to this Deed becomes enforceable be exercised by the Investor in
relation to any Charged Property without first appointing a Receiver and notwithstanding the appointment of a Receiver.
Save as otherwise expressly provided
in this Deed, all moneys and/or non-cash recoveries and/or proceeds received or recovered by the Investor or any Receiver pursuant to
this Deed or the powers conferred by it shall (subject to the claims of any person having prior rights thereto and subject to Clause
12.2 (Suspense Account)) be applied:
| 12.1.1 | first,
in the payment of the costs, charges and expenses incurred and payments made by any Receiver,
the payment of his remuneration and the discharge of any liabilities incurred by such Receiver
in, or incidental to, the exercise of any of his powers; |
| 12.1.2 | second,
be applied by the Investor as the Investor shall think fit in discharge of the Secured Obligations;
and |
| 12.1.3 | third,
following such payments, the remaining balance (if any) shall be paid to the Chargor for
its rights and interests or such other person as may be entitled thereto. |
This Clause does not prejudice the
right of the Investor to recover from the Chargor any shortfall between (i) any Unpaid Sum; and (ii) the moneys and/or non-cash
recoveries and/or proceeds received or recovered under this Clause.
All monies received, recovered or realised
under this Deed by the Investor or any Receiver or the powers conferred by it (including the proceeds of any conversion of currency)
may in its discretion be credited to and held in any suspense or impersonal account pending their application from time to time in or
towards the discharge of any of the Secured Obligations in accordance with Clause 12.1 (Order of Application).
| 12.3 | Application
by Chargor |
Any application under this Clause 12
shall override any application by the Chargor.
| 13. | RECEIPT
AND PROTECTION OF PURCHASERS |
| 13.1 | Receipt
and Consideration |
The receipt of the Investor or any
Receiver shall be conclusive discharge to a purchaser of any part of the Charged Property from the Investor or such Receiver and in making
any sale or disposal of any part of the Charged Property or making any acquisition, the Investor or any Receiver may do so for such consideration,
in such manner and on such terms as it thinks fit.
| 13.2 | Protection
of Purchasers |
No purchaser or other person dealing
with the Investor or any Receiver shall be bound to inquire whether the right of the Investor or such Receiver to exercise any of its
powers has arisen or become exercisable or be concerned with any propriety or regularity on the part of the Investor or such Receiver
in such dealings. The protection given to purchasers from a mortgagee in sections 52 and 55 of the Conveyancing and Property Ordinance
(Chapter 219 of the Laws of Hong Kong) shall apply mutatis mutandis to purchaser(s) and other person(s) dealing with
the Investor or any Receiver.
| 14.1 | Appointment
and Powers |
The Chargor by way of security irrevocably
(within the meaning of Section 4 of the Powers of Attorney Ordinance (Chapter 31 of the Laws of Hong Kong) appoints the Investor
and any Receiver severally to be its attorney and in its name, on its behalf to execute, deliver and perfect all documents and do all
things which the Investor or such Receiver may consider to be necessary for:
| 14.1.1 | carrying
out any obligation imposed on the Chargor by this Deed or any other agreement binding on
the Chargor to which the Investor is party (including without limitation the execution and
delivery of any deeds, charges, assignments or other security and any transfers of the Charged
Property or any part thereof); and |
| 14.1.2 | enabling
the Investor and any Receiver to exercise, or delegate the exercise of, any of the rights,
powers and authorities conferred on them by or pursuant to this Deed or by law (including,
without limitation, upon or after the occurrence of a Triggering Event, the exercise of any
right of a legal or beneficial owner of the Charged Property or any part thereof). |
The Chargor shall ratify and confirm
all things done and all documents executed by any attorney in the lawful exercise or purported exercise of all or any of its powers pursuant
to this Deed.
The Chargor represents and warrants
to the Investor that:
| 15.1.1 | the Chargor
is aged 18 or above and of full mental capacity; |
| 15.1.2 | subject
to Legal Reservations, each of the obligations expressed to be assumed by him in this Deed
are legal, valid, binding and enforceable obligation, and this Deed creates the security
interests which it purports to create and such security interests are valid and effective; |
| 15.1.3 | the entry
into and performance by him of, and the transactions contemplated by, this Deed do not and
will not: |
| (a) | conflict with
any law or regulation applicable to him; |
| (b) | conflict with
any agreement or instrument binding upon him or any of his assets; or |
| (c) | result in
the existence of or oblige him to create any security over all or any of his assets (other
than the security constituted pursuant to this Deed); |
| 15.1.4 | he has
the power to enter into, perform and deliver, and has taken all necessary actions to authorise
his entry into, performance and delivery of, this Deed; |
| 15.1.5 | no limit
on his powers will be exceeded as a result of the grant of security contemplated by this
Deed; |
| 15.1.6 | all Authorisation
required or desirable: |
| (a) | to enable
him lawfully to enter into, exercise its rights and comply with his obligations in this Deed; |
| (b) | to make this
Deed admissible in evidence in Hong Kong; and/or |
| (c) | to enable
him to create the security expressed to be created by him pursuant to this Deed and to ensure
that such security has the priority and ranking it is expressed to have, |
have been obtained or effected and are in full force and effect;
| 15.1.7 | subject
to Legal Reservations, the choice of the laws of Hong Kong as the governing law of this Deed
will be recognised and enforced in the courts of Hong Kong; |
| 15.1.8 | subject
to Legal Reservations, any judgment obtained in the courts of Hong Kong in relation to this
Deed will be recognised and enforced in Hong Kong; |
| 15.1.9 | save
and except for those as set out in Clause 4 (Perfection of Security) herein, under
the law of the British Virgin Islands, it is not necessary that this Deed be filed, recorded
or enrolled with any court or other authority in that jurisdiction or that any stamp, registration
or similar tax be paid on or in relation to this Deed; |
| 15.1.10 | all
consents necessary to enable any asset that is expressed to be subject to any security under
this Deed to be the subject of effective security under this Deed have been obtained and
are in full force and effect; |
| 15.1.11 | he is,
and will be, the sole and absolute beneficial owner of the Charged Property free from Security
Interest (other than the security constituted pursuant to this Deed) and this Deed creates
in favour of the Investor first ranking Security Interest over the Charged Property; |
| 15.1.12 | the
Shares and, to the extent applicable, the other Share Collateral, are duly authorised, validly
issued, fully paid and not subject to any option to purchase or similar right and the particulars
of the Shares set out in Schedule 1 (Particulars of Shares) are accurate and the Shares
described therein constitute 100% of the issued shares of the Company; |
| 15.1.13 | he has
not sold or otherwise disposed of, or created, granted or permitted to subsist any security
over, all or any of his right, title and interest in the Charged Property (other than the
security constituted pursuant to this Deed and other than as expressly permitted under this
Deed); |
| 15.1.14 | the
Share Collateral has been validly issued and allotted by the Company and are fully paid up
and there are no monies or liabilities payable or outstanding by the Chargor in relation
to any of the Shares; |
| (a) | no petition
has been presented, and no order has been made, for the bankruptcy of the Chargor or for
the appointment of a bankruptcy trustee to the Chargor; |
| (b) | the Chargor
has not proposed or agreed to a composition, compromise, assignment or arrangement with any
of his creditors; and |
| (c) | the Chargor
is not subject to or threatened by any other procedures or steps which are analogous to those
set out above. |
| 15.1.16 | no Event
of Default is continuing or might reasonably be expected to result from the entry into, the
performance of, or any transaction contemplated by this Deed; |
| 15.1.17 | no other
event or circumstance is outstanding which constitutes (or, with the expiry of a grace period,
the giving of notice, the making of any determination or any combination of any of the foregoing,
would constitute) a default or termination event (however described) under any other agreement
or instrument which is binding on him or to which his assets are subject; and |
| 15.1.18 | no litigation,
arbitration, investigation or administrative proceedings of or before any court, arbitral
body or agency been started or threatened, or is pending, against him or his assets which
may have a Material Adverse Effect. |
Each of the representations and warranties
above shall be deemed to be repeated by the Chargor on each day of the Security Period by reference to the facts and circumstances existing
at the date on which such representation or warranty is deemed to be made or repeated.
| 16.1 | The Chargor
hereby covenants during the Security Period it will remain the legal and the beneficial owner
of the Charged Property (subject only to the security created by this Deed) and that it shall
not: |
| 16.1.1 | create
or permit to subsist any security (other than that created by this Deed) on or in respect
of the whole of any part of the Charged Property or any of its interest therein; or |
| 16.1.2 | sell,
lease, assign, lend, dispose of, transfer or otherwise deal with any of its interest in the
Charged Property (other than pursuant to this Deed) and in any such case, without the prior
written consent of the Investor; or |
| 16.1.3 | do, or
permit to be done, any act or thing that would or might depreciate, jeopardise or otherwise
prejudice the security held by the Investor, or diminish the value of any of the Charged
Property or the effectiveness of the security created by this Deed. The Chargor shall, promptly
on becoming aware, notify the Investor in writing of any representation or warranty set out
in Clause 15.1 (Representations) which is incorrect or misleading in any respect when
made or deemed to be repeated and any breach of any covenant set out in this Deed. |
| 16.2 | The Chargor
shall deliver to the Investor immediately upon receipt by the Chargor copies of all notices
of general meetings, proposed shareholder resolutions of the Company, financial statements
and all other materials distributed to, or requiring action by, shareholders of the Company
from time to time and all other materials and information distributed by the Company to,
or requiring action by, the shareholders of the Company and such other information concerning
the Company (that the Chargor as a shareholder of the Company would have known) as the Investor
shall from time to time request. |
| 16.3 | The Chargor
shall remain liable to perform all the obligations assumed by it in relation to the Charged
Property and the Investor shall be under no obligation of any kind whatsoever in respect
thereof or be under any liability whatsoever in the event of any failure by the Chargor to
perform its obligations in respect thereof. |
| 16.4 | The Chargor
shall not take, or allow the taking of, any action on its behalf which may result in the
rights attaching to, or conferred by, all or any of the Charged Property being altered. |
| 16.5 | The Chargor
shall not waive, release, settle, compromise, abandon or set-off any claim or the liability
of any person in respect of the Related Rights, or do or omit to do any other act or thing
whereby the recovery in full of the Related Rights as and when they become payable may be
impeded. |
| 16.6 | The Chargor
shall not, and shall procure that there shall not, effect any sale, transfer or disposal
of any Shares or Charged Property or any interest therein, without the prior written consent
of the Investor. |
| 16.7 | If the Chargor
sells, assigns, or otherwise disposes of or parts with possession of or deals with or otherwise
creates an interest in (a “Disposal”) any Charged Property in breach of
Clause 16.6, then, despite that Disposal: |
| 16.7.1 | the Investor
is not to be taken to have authorised the Disposal; |
| 16.7.2 | the Investor
is not to be taken to have agreed that the Disposal would extinguish any Security Interest
the Investor holds in that Charged Property; |
| 16.7.3 | to the
extent the law allows, the Security Interest continues in that Charged Property; and |
| 16.7.4 | the Chargor
must give the Investor prompt notice of the Disposal and any information requested by the
Investor in relation to the other person or persons party to the Disposal to enable the Investor
to perfect the Security Interest as against that person or those persons. |
| 16.8 | The Chargor
shall promptly: |
| (a) | obtain,
comply with and do all that is necessary to maintain in full force and effect; and |
| (b) | supply certified
copies to the Investor of, |
any authorisation required under any
law or regulation of its jurisdiction of incorporation to enable it to perform its obligations under this Deed and to ensure the legality,
validity, enforceability or admissibility in evidence in its jurisdiction of incorporation of this Deed.
| 17. | EFFECTIVENESS
OF SECURITY |
The security created by or pursuant
to this Deed shall remain in full force and effect as a continuing security for the Secured Obligations unless and until discharged
by the Investor. No part of the security from time to time intended to be constituted by this Deed will be considered satisfied or discharged
by any intermediate payment, discharge or satisfaction of the whole or any part of the Secured Obligations.
The security created by this Deed and
the Collateral Rights shall be cumulative, in addition to and independent of every other security which the Investor may at any time
hold for any or all of the Secured Obligations or any rights, powers and remedies provided by law. No prior security held by the Investor
over the whole or any part of the Charged Property shall merge into the security constituted by this Deed. The foregoing applies notwithstanding
any receipt, release or discharge endorsed or given in respect of or under any such other Security.
| 17.3 | Chargor’s
Obligations |
None of the obligations of the Chargor
under this Deed or the Collateral Rights shall be affected by an act, omission, matter, thing or event which, but for this Clause 17.3,
would reduce, release or prejudice any of its obligations under this Deed, any of the obligations of the Chargor under this Deed or the
Collateral Rights including (without limitation and whether or not known to it or the Investor):
| 17.3.1 | the winding-up,
dissolution, administration, reorganisation, death, insolvency, incapacity or bankruptcy
of the Chargor or any other person or any change in its status, function, control or ownership; |
| 17.3.2 | any of
the obligations of the Chargor or any other person under any Transaction Document, or under
any other security relating to any Transaction Document, being or becoming illegal, invalid,
unenforceable or ineffective in any respect; |
| 17.3.3 | any time,
waiver or consent granted to, or composition with, the Chargor or any other person; |
| 17.3.4 | the release
of the Chargor or any other person under the terms of any composition or arrangement with
any creditor of the Chargor or any other person; |
| 17.3.5 | the taking,
variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect,
take up or enforce, any rights against, or security over assets of, the Chargor or other
person or any non-presentation or non-observance of any formality or other requirement in
respect of any instrument or any failure to realise the full value of any security; |
| 17.3.6 | any incapacity
or lack of power, authority or legal personality of or dissolution or change in the members
or status of the Chargor or any other person; |
| 17.3.7 | any amendment,
novation, supplement, extension (whether of maturity or otherwise) or restatement (in each
case however fundamental and of whatsoever nature, and whether or not more onerous) or replacement
of a Transaction Document or any other document or security or of the Secured Obligations; |
| 17.3.8 | any unenforceability,
illegality or invalidity of any obligation of any person under any Transaction Document or
any other document or security; |
| 17.3.9 | any insolvency
or similar proceedings; |
| 17.3.10 | the
existence of any claim, set-off right or other right that the Chargor may have at any time
against the Investor or any other person; or |
| 17.3.11 | any
law, regulation or decree or order of any jurisdiction affecting the Chargor. |
Without prejudice to the generality
of Clause 17.3 (Chargor’s Obligations), the Chargor expressly confirms that it intends that the security created under this
Deed, and the Collateral Rights, shall extend from time to time to any (however fundamental and of whatsoever nature, and whether or
not more onerous) variation, increase, extension or addition of or to any of the Transaction Documents or any other security relating
to any Transaction Document.
No failure on the part of the Investor
to exercise, or any delay on its part in exercising, any Collateral Right shall operate as a waiver thereof or constitute an election
to affirm this Deed. No election by the Investor or any Receiver to affirm this Deed or to waive any Collateral Rights shall be effective
unless it is in writing. The Collateral Rights are cumulative and not exclusive of the rights of the Investor or any Receiver under the
general law, nor shall any single or partial exercise of any Collateral Right preclude any further or other exercise of that or any other
Collateral Right.
The Chargor waives any right it may
have of first requiring the Investor (or any trustee or agent on its behalf) to proceed against or enforce any other right or security
or claim payment from any person or file any proof or claim in any insolvency, administration, winding-up or liquidation proceedings
relative to any other person before claiming from the Chargor under this Deed.
None of the Investor, its nominee(s) or
any Receiver shall be liable by reason of (a) taking any action permitted by this Deed or (b) any neglect or default in connection
with all or any part of the Charged Property or (c) taking possession of or realising all or any part of the Charged Property, except
in the case of wilful default upon its part (as finally judicially determined).
If, at any time, any provision of this
Deed is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity
or enforceability of the remaining provisions of this Deed under such laws nor of such provision under the laws of any other jurisdiction
shall in any way be affected or impaired thereby and, if any part of the security intended to be created by or pursuant to this Deed
is invalid, unenforceable or ineffective for any reason, that shall not affect or impair any other part of that security.
The Investor shall not be obliged to
make any demand of or enforce any rights or claim against the Chargor or any other person, to take any action or obtain judgment in any
court against the Chargor or any other person or to make or file any proof or claim in a liquidation, bankruptcy or insolvency of the
Chargor or any other person or to enforce or seek to enforce any other security in respect of any or all of the Secured Obligations before
exercising any Collateral Right.
Until the time when (i) all Secured
Obligations have been irrevocably discharged in full and (ii) all amounts which may be or become payable by the Chargor and the
Chargor under or in connection with the Transaction Documents have been irrevocably paid in full, the Chargor will not (unless the Investor
otherwise directs) exercise any rights which it may have by reason of performance by it of its obligations under this Deed:
| 17.10.1 | to be
indemnified by the Chargor; |
| 17.10.2 | to claim
any contribution from any guarantor of the Chargor’s obligations under any or all of
the Transaction Documents; and/or |
| 17.10.3 | to take
the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights
of the Investor under the Transaction Documents or of any other guarantee or security taken
pursuant to, or in connection with, the Transaction Documents by the Investor; |
| 17.10.4 | to bring
legal or other proceedings for an order requiring any Obligor to make any payment, or perform
any obligation, in respect of which the Chargor has given a guarantee, security, undertaking
or indemnity under any Transaction Document; |
| 17.10.5 | to exercise
any right of set-off against any Obligor; and/or |
| 17.10.6 | to claim
or prove as a creditor of any Obligor in competition with the Investor. |
If the Chargor shall receive any benefit, payment or distribution
in relation to any such right it shall hold that benefit, payment or distribution (or so much of it as may be necessary to enable all
Secured Obligations to be paid in full) on trust for the Investor, and shall promptly pay or transfer the same to the Chargor (or as
the Investor may direct) for application in accordance with Clause 12.1 (Order of Application).
| 17.11 | Settlement
conditional |
Any settlement, discharge or release
hereunder in relation to the Chargor or all or any part of the Charged Property shall be conditional upon no security or payment by the
Chargor to the Investor being avoided or reduced by virtue of any bankruptcy, insolvency, liquidation or similar laws of general application
or any similar event or for any other reason and shall in the event of any such avoidance or reduction or similar event be void, and
the liability of the Chargor under this Deed and the Security Interest created by this Deed shall continue as if such payment, settlement,
discharge or release had not occurred.
| 18.1 | Redemption
of Security |
Upon the time when (i) all Secured
Obligations have been irrevocably discharged in full, and (ii) all amounts which may be or become payable by the Chargor under or
in connection with the Transaction Documents have been irrevocably paid in full, the Investor shall, at the request (with reasonable
notice) and cost of the Chargor, as soon as reasonably practicable, release and cancel the security constituted by this Deed on the relevant
Share Collateral and procure the reassignment to the Chargor of the property and assets assigned to the Investor and the return to the
Chargor of the certificates and documents delivered to the Investor pursuant to this Deed (to the extent not otherwise sold, assigned
or otherwise disposed of or applied in accordance with this Deed), in each case subject to Clauses 18.2 (Avoidance of Payments)
and 17.11 (Settlement conditional) and without recourse to, or any representation or warranty by, the Investor or any of its nominees.
| 18.2 | Avoidance
of Payments |
If the Investor reasonably considers
that any amount paid or credited to or recovered by the Investor from the Chargor or the Guarantor is capable of being avoided or reduced
by virtue of any bankruptcy, insolvency, liquidation or similar laws, the liability of the Chargor under this Deed and the security constituted
by this Deed shall continue and such amount shall not be considered to have been irrevocably paid.
| 19. | SUBSEQUENT
AND PRIOR SECURITY INTERESTS |
| 19.1 | Subsequent
security interests |
If the Investor (acting in its capacity
as chargee or otherwise) at any time receives or is deemed to have received notice of any subsequent security or other interest affecting
all or any part of the Charged Property or any assignment or transfer of the Charged Property which is prohibited by the terms of this
Deed or the Transaction Documents, all payments thereafter by or on behalf of the Chargor to the Investor shall be treated as having
been credited to a new account of the Investor and not as having been applied in reduction of the Secured Obligations as at the time
when (or at any time after) the Investor received such notice of such subsequent security or other interest or such assignment or transfer.
| 19.2 | Prior
security interests |
In the event of any action, proceeding
or step being taken to exercise any powers or remedies conferred by any prior ranking security or upon the exercise by the Investor or
any Receiver of any power of sale under this Deed or any Collateral Right, the Investor may redeem any prior ranking security over or
affecting any Charged Property or procure the transfer of any such prior ranking security to itself. The Investor may settle and agree
the accounts of the beneficiary of any such prior security and any accounts so settled and agreed will be conclusive and binding on the
Chargor. All principal, interest, costs, charges, expenses and/or other amounts relating to and/or incidental to any such redemption
or transfer shall be paid by the Chargor to the Investor upon demand.
| 20. | CURRENCY
CONVERSION AND INDEMNITY |
For the purpose of or pending the discharge
of any of the Secured Obligations the Investor may convert any money received, recovered or realised or subject to application by it
under this Deed from one currency to another, as the Investor may think fit, and any such conversion shall be effected at the Investor’s
spot rate of exchange (or, if no such spot rate of exchange is quoted by the Investor, such other rate of exchange as may be available
to the Investor) for the time being for obtaining such other currency with such first-mentioned currency.
If any sum (a “Sum”)
owing by the Chargor under this Deed or any order or judgment given or made in relation to this Deed has to be converted from the currency
(the “First Currency”) in which such Sum is payable into another currency (the “Second Currency”)
for the purpose of:
| 20.2.1 | making
or filing a claim or proof against the Chargor; |
| 20.2.2 | obtaining
an order or judgment in any court or other tribunal; |
| 20.2.3 | enforcing
any order or judgment given or made in relation to this Deed; or |
| 20.2.4 | applying
the Sum in satisfaction of any of the Secured Obligations, |
the Chargor shall indemnify the Investor
from and against any loss suffered or incurred as a result of any discrepancy between (a) the rate of exchange used for such purpose
to convert such Sum from the First Currency into the Second Currency and (b) the rate or rates of exchange available to the Investor
at the time of such receipt or recovery of such Sum.
| 21. | COSTS,
EXPENSES AND INDEMNITY |
The Chargor shall, on demand of the
Investor, reimburse the Investor on a full indemnity basis for all costs and expenses (including legal fees and any value added tax)
incurred by the Investor in connection with (a) the execution of this Deed or otherwise in relation to this Deed, including but
not limited to costs and expenses relating to any amendment of this Deed, (b) the perfection or enforcement of the security constituted
by this Deed, (c) the exercise of any Collateral Right, together with interest from the date such costs and expenses were incurred
to the date of reimbursement of the same by the Chargor, and (d) the release of the security constituted by this Deed.
The Chargor shall pay all stamp, registration
and other Taxation to which this Deed, the security contemplated in this Deed and/or any judgment given in connection with this Deed
is, or at any time may be, subject and shall, from time to time, indemnify the Investor on demand against any liabilities, costs, claims
and/or expenses resulting from any failure to pay or delay in paying any such Tax.
The Chargor shall, notwithstanding
any release or discharge of all or any part of the security constituted by this Deed, indemnify the Investor, its agents, attorneys and
any Receiver against any action, proceeding, claims, losses, liabilities and costs which it may sustain as a consequence of any breach
by the Chargor of the provisions of this Deed, the exercise or purported exercise of any of the rights and powers conferred on any of
them by this Deed or otherwise relating to the Charged Property or any part thereof.
| 22. | PAYMENTS
FREE OF DEDUCTION |
All payments to be made to the Investor
under this Deed shall be made free and clear of and without deduction for or on account of any Taxation unless the Chargor is required
to make such payment subject to the deduction or withholding of any Taxation, in which case the sum payable by the Chargor in respect
of which such deduction or withholding is required to be made shall be increased to the extent necessary to ensure that, after the making
of such deduction or withholding, the person on account of whose liability to tax such deduction or withholding has been made receives
and retains (free from any liability in respect of any such deduction or withholding) a net sum equal to the sum which it would have
received and so retained had no such deduction or withholding been made or required to be made.
| 22.2 | No
set-off or counterclaim |
All payments to be made by the Chargor
under this Deed shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.
| 23. | DISCRETION
AND DELEGATION |
Any liberty or power which may be exercised
or any determination which may be made under this Deed by the Investor or any Receiver may, subject to the applicable terms and conditions
of, as the case may be, the Transaction Documents, be exercised or made in its absolute and unfettered discretion without any obligation
to give reasons.
| (a) | Each of
the Investor and any Receiver shall have full power to delegate (either generally or specifically)
the powers, authorities and discretions conferred on it by this Deed (including without limitation
the power of attorney under Clause 14 (Power of Attorney)) on such terms and conditions
as it shall see fit which delegation shall not preclude any subsequent exercise, any subsequent
delegation or any revocation of such power, authority or discretion by the Investor or any
Receiver. |
| (b) | Neither
the Investor nor any Receiver will be in any way liable or responsible to the Chargor for
any loss or liability arising from any act, default, omission, neglect or misconduct on the
part of any delegate or sub-delegate. |
In acting as chargee, the Investor
shall have the benefit of all indemnities, protections and rights on its part set out in the Transaction Documents, as if set out fully
herein.
The Investor may set off any matured
obligation due from the Chargor under any or all of the Transaction Documents (to the extent beneficially owned by the Investor) against
any matured obligation owed by the Investor to the Chargor, regardless of the place of payment, booking branch or currency of either
obligation. If such obligations are in different currencies, the Investor may convert either obligation at a market rate of exchange
in its usual course of business for the purpose of such set-off.
This Deed shall be binding upon and
enure to the benefit of each party hereto and its and/or any subsequent successors and permitted assigns and transferees. Without prejudice
to the foregoing, this Deed shall remain in effect despite any amalgamation or merger (however effected) relating to the Investor; and
references to the Investor herein shall be deemed to include any person who, under the laws of its jurisdiction of incorporation or domicile,
has assumed the rights and obligations of the Investor under this Deed or to which, under such laws, those rights and obligations have
been transferred.
| 25.2 | No
Assignment or Transfer by Chargor |
The Chargor may not assign or transfer
any or all of its rights (if any) and/or obligations under this Deed.
| 25.3 | Assignment
or Transfer by Investor |
The Investor may assign or transfer
any or all of its rights (if any) and/or obligations under this Deed.
The Investor shall be entitled to disclose
such information concerning the Chargor or any other person and this Deed as the Investor considers appropriate to any actual or proposed
direct or indirect successor or to any person to whom information may be required to be disclosed by applicable law.
| 26. | AMENDMENTS
AND WAIVERS |
26.1 | Any provision of this Deed may be amended or waived only
by agreement in writing between the Chargor and the Investor. No third party’s signature
is required for any amendment. |
26.2 | No failure on the part of the Investor to exercise, or
delay on its part in exercising, any or all of its rights hereunder shall operate as a waiver
thereof or constitute an election to affirm this Deed. No election to affirm this Deed on
the part of the Investor shall be effective unless it is in writing. No single or partial
exercise of any such right or remedy shall preclude any further or other exercise of such
or any other right or remedy. |
The perpetuity period under the rule against
perpetuities, if applicable to this Deed, shall be the period of 80 years from the date of the Subscription Agreement.
28.1 | Any notice, claim or demand in connection with this Deed
shall be in writing, in English language, and marked “IMPORTANT LEGAL NOTICE”
(each a “Notice”), and shall be delivered or sent to the recipient at
its email address, facsimile number or address (where applicable) listed below, or any other
email address, facsimile number or address notified to the sender by the recipient for the
purposes of this Instrument: |
To the Chargor: |
CHEN SHENG
(陈升)
Address: 10 Jiuxianqiao East Road, Chaoyang District,
Beijing 100016
Email: Josh.Chen@vnet.com |
|
Facsimile: +86 10 8456 4234 |
|
|
To the Investor: |
SHINING RICH HOLDINGS LIMITED
耀富控股有限公
司
Email: workforpapper@163.com
Attention: Fang Li / Tong Lin |
28.2 | If any Investor that is a natural Person dies, until the
Party giving a Notice has received notice in writing of the grant of probate of his will
or letters of administration of his estate (or equivalent), any Notice so given shall be
as effectual as if he was still living. |
28.3 | Without prejudice to Clause 28.2, any Notice shall be
deemed to have been served: (a) if served by hand, when delivered and proof of delivery
is obtained by the delivery party, (b) if served by overnight courier, on the next Business
Day, or (c) if sent by facsimile or email, only when received in legible form by at
least one of the relevant facsimile number or email addresses (as applicable) of the person(s) to
whom the communication is made. Any Notice received on a Sunday or public holiday shall be
deemed to be received on the next Business Day. |
This Deed may be executed in any number of counterparts,
all of which taken together shall constitute one and the same instrument.
30.1 | A Person who is not a Party has no right under the Contracts
(Rights of Third Parties) Ordinance (Chapter 623 of the Laws of Hong Kong) to enforce or
to enjoy the benefit of any term of this Deed. |
30.2 | Notwithstanding any term of this Deed, the consent of
any person who is not a Party is not required to rescind or vary this Deed at any time. |
This Deed shall be governed by and shall be construed in
accordance with Hong Kong law.
32.1 | With respect to any dispute, controversy or claim arising
out of or relating to this Deed, including the existence, validity, performance, interpretation,
construction, breach or termination thereof or the consequences of its nullity (each a “Dispute”),
the Parties hereby irrevocably submit to the non-exclusive jurisdiction of the Hong Kong
courts. |
32.2 | The Chargor irrevocably waives, to the extent permitted
by applicable law, with respect to itself and its revenues and assets (irrespective of their
use or intended use), all immunity on the grounds of sovereignty or other similar grounds
from: |
| 32.2.2 | jurisdiction
of any court or arbitral tribunal; |
| 32.2.3 | relief
by way of injunction or order for specific performance or recovery of property; |
| 32.2.4 | attachment
of its assets (whether before or after judgment); and |
| 32.2.5 | execution
or enforcement of any judgment to which it or its revenues or assets might otherwise be entitled
in any proceedings in the courts or arbitral tribunal of any jurisdiction (and irrevocably
agrees, to the extent permitted by applicable law, that it will not claim any immunity in
any such proceedings). |
32.3 | This Clause 32 (Jurisdiction) is for the benefit
of the Investor only. As a result and notwithstanding Clause 32.1, nothing herein shall prevent
the Investor from taking proceedings relating to a Dispute in any other courts with jurisdiction.
To the extent allowed by law the Investor may take concurrent proceedings in any number of
jurisdictions. |
33.1 | Without prejudice to any other mode of service allowed
under any relevant law, the Chargor irrevocably appoints VNET Group Limited of 37/F., Tower
1 Metroplaza, Hing Fong Road, Kwai Fong, Hong Kong as its agent under this Deed for service
of process in any proceedings before the Hong Kong courts in connection with this Deed. |
33.2 | If any person appointed as process agent under this Clause
is unable for any reason to so act, the Chargor must immediately (and in any event within
five (5) days of the event taking place) appoint another agent on terms acceptable to
the Investor. Failing this, the Investor may appoint another process agent for this purpose. |
33.3 | The Chargor agrees that failure by a process agent to
notify it of any process will not invalidate the relevant proceedings. |
33.4 | This Clause does not affect any other method of service
allowed by law. |
SCHEDULE 1
PARTICULARS OF SHARES
Legal and Beneficial owner |
Issued shares of the Company |
|
|
CHEN Sheng (陈升) |
one (1) ordinary share |
SCHEDULE
2
FORMS
OF INSTRUMENT OF TRANSFER
in consideration of the Sum of |
|
paid to me/us by (name in full) |
|
(hereinafter called “the said Transferee”) do hereby
transfer to the said Transferee the |
share(s) numbered |
|
standing in my/our name in the Register of |
|
|
|
to hold unto the said Transferee or (his/her
Executors or Administrators/its Assigns), subject to the several conditions upon which I/we hold the same at the time of execution
hereof. And I/we the said Transferee do hereby agree to take the said shares subject to the same conditions. |
Dated day
of .
|
|
(Signature of Transferor) |
|
|
|
|
|
(Signature of Transferee) |
|
|
|
SCHEDULE 3
FORM OF IRREVOCABLE
PROXY AND POWER OF ATTORNEY
GENTAO CAPITAL LIMITED
(the “Company”)
The undersigned, CHEN
SHENG ( 陈 升 ), as a shareholder of the Company, hereby
makes, constitutes and appoints the following person:
[to be left blank]
(the “Attorney”)
as the true and lawful attorney and proxy of the undersigned with full power to appoint a nominee or nominees to act hereunder from time
to time and to vote any existing or further shares in the Company which may have been or may from time to time be issued and/or registered
in our name (the “Shares”) at all general meetings of shareholders or stockholders of the Company with the same force
and effect as the undersigned might or could do and to requisition and convene a meeting or meetings of the shareholders of the Company
for the purpose of appointing or confirming the appointment of new directors of the Company and/or such other matters as may in the opinion
of the Attorney be necessary or desirable for the purpose of implementing the Share Charge referred to below and the undersigned hereby
ratifies and confirms all that the said Attorney or its nominee or nominees shall do or cause to be done by virtue hereof.
The Shares
have been charged to the Attorney pursuant to a share charge dated ________________________2024 between CHEN SHENG ( 陈
升 ) as Chargor and SHINING RICH HOLDINGS LIMITED 耀富控股有限公司
as Investor (the “Share Charge”).
Notwithstanding anything
contained in this instrument, the power of attorney and proxy shall only be exercisable upon and after the occurrence of a Triggering
Event (as defined in the Share Charge).
This power and proxy is
given to secure a proprietary interest of the donee of the power and is irrevocable and shall remain irrevocable as long as the Share
Charge is in force.
IN WITNESS
whereof this instrument has been duly executed this
day of 2024
as a deed.
(The remainder of this
page is intentionally left blank)
SIGNED
SEALED AND DELIVERED
by
CHEN
SHENG (陈升) |
)
)
)
)
)
) |
|
![](https://www.sec.gov/Archives/edgar/data/1541680/000110465924078193/tm2418852d1_ex99-28img002.jpg) |
in the
presence of: |
) |
CHEN
SHENG (陈升) |
|
|
|
|
|
|
|
|
|
Signature
of witness |
|
|
|
|
|
|
|
Name of
witness: |
|
|
|
|
|
|
|
Address
of witness: |
|
|
|
SCHEDULE 4
FORM OF LETTER OF RESIGNATION
| To: | The
Board of Directors |
GenTao Capital Limited (the “Company”)
Date:
Dear Sirs,
Resignation
I hereby tender my unconditional
and irrevocable resignation as a director of the Company with effect from the date of this letter. I confirm that:
1. | I (in my capacity as a director of the Company) have no
claims whatsoever against the Company or any of its subsidiaries or associated companies
(if any) on any account (whether for loss of office, for accrued remuneration or for fees
or otherwise howsoever); and |
2. | there is no outstanding agreement or arrangement with the
Company or any of its subsidiaries or associated companies (if any) under which the Company
or any of such subsidiaries or associated companies has or would have any obligation to me
whether now or in the future or under which I would derive any benefit (in each case, in
my capacity as a director of the Company). |
This letter is governed by
and shall be construed in accordance with the laws of Hong Kong.
[name of relevant director] |
|
SCHEDULE 5
FORM OF WRITTEN RESOLUTIONS
GENTAO CAPITAL LIMITED
(the “Company”)
Dated: [to be left blank]
IT IS RESOLVED THAT:
1. | each of the following transfers of the shares in the Company
be approved and that, upon the delivery to any director of the Company of a duly completed
instrument of transfer in respect of any of the following transfers, the name of the relevant
transferee be entered forthwith in the register of members of the Company in respect of the
relevant shares so transferred and that new share certificates in respect of such shares
be issued forthwith to such transferee in accordance with the Articles of Association of
the Company: |
[to be left blank]
2. | each of the following persons be appointed as an additional
director of the Company with immediate effect: |
[to be left blank]
3. | the resignation of the following persons as directors of
the Company be accepted with immediate effect: |
[to be left blank]
4. | the above changes in members and directors of the Company
be entered in the Register of Directors and Register of Members of the Company and that any
director of the Company be authorised to sign and deliver any relevant return in connection
therewith. |
[all the
directors of the Company to state their names and sign]
SCHEDULE
6
FORM OF
LETTER OF UNDERTAKING AND AUTHORISATION
To: Shining
Rich Holdings Limited 耀富控股有限公司as
Investor (as defined in the Deed) (which expression shall include its successors, assigns and transferees)
Dear Sirs,
Deed
of Share Charge dated 2024
by CHEN SHENG (陈升) in favour of SHINING RICH HOLDINGS LIMITED
耀富控股有限公司 as Investor
(as amended from time to time, the “Deed”)
Terms and expressions defined
in or construed for the purposes of the Deed shall have the same meaning herein.
I hereby unconditionally and
irrevocably:
1 | undertake to procure, to the
extent of my powers as a director of GenTao Capital Limited (the “Company”),
that any or all of the shares in the Company which are charged to you pursuant to the Deed
shall upon your request be promptly registered in the name of yourself or (at your request)
any person(s) whom you may nominate; |
2 | authorise each of you and any
other person(s) authorised by you severally to complete, date and put into effect: |
| (a) | the attached
letter of resignation signed by me; |
| (b) | the attached
written resolutions of the board of directors of the Company signed by me; and |
| (c) | any other
document signed by me and delivered pursuant to Clause 4.2 (Delivery of Documents of Title)
of the Deed, |
in each case at any time after the security constituted
by the Deed shall have become enforceable in accordance with its terms.
This letter is governed by
and shall be construed in accordance with the laws of Hong Kong.
Dated: ____________________
IN WITNESS
WHEREOF this deed has been executed the day and year above written.
SIGNED
SEALED AND DELIVERED
by
[name
of relevant director]
In
the presence of |
)
)
)
) |
|
![](https://www.sec.gov/Archives/edgar/data/1541680/000110465924078193/tm2418852d1_ex99-28img002.jpg) |
|
|
|
|
Signature
of witness: |
|
|
Name of
witness: |
|
|
SCHEDULE
7
FORM OF
LETTER TO REGISTERED AGENT FROM THE COMPANY
[Registered Agent]
[Address]
British Virgin Islands
[Date]
Dear Sirs
GenTao Capital Limited
(the “Company”)
We hereby
notify you that Sheng Chen (the “Chargor”) has entered into a charge over shares in favour of Shining Rich Holdings
Limited 耀富控股有限公司(the
“Investor”) in respect of all the shares held by the Chargor in the Company (the “Share Charge”).
Under the terms of the Share Charge, the Investor is permitted, following the occurrence of an Event of Default (as defined in the Share
Charge) (an “Enforcement Event”), to, inter alia, perfect the transfer of the shares held by the Chargor in the Company
to the Investor.
From
the date of an Enforcement Event as may be notified to you by the Investor, we irrevocably instruct and authorise you that your client
of record is ,
and you should release all such information, do all such things and perform all such acts as may be requested or required by and/or
their duly authorised representatives regarding information held by you of the Company including, without limitation, providing access
to all Company documents and acting on the instructions of the Investor to update the register of members of the Company to reflect the
transfer of shares by the Chargor to the Investor or one of its nominees.
We hereby
agree and instruct you that any written confirmation by the Investor to you that an Enforcement Event has occurred shall be conclusive
and binding.
As of
the date of this letter you are also irrevocably instructed and authorised to annotate the Register of Members of the Company with:
“All
the ordinary share registered in the name of Sheng Chen (陈升)
are charged in favour of Shining Rich Holdings Limited 耀富控股有限公司
pursuant to a share charge dated [enter date], as amended from time to time. The date on which this annotation was entered
in the Register of Members is [enter date].”
Yours
faithfully,
For and
on behalf of
GenTao
Capital Limited
Title:
Acknowledged and agreed by:
for and on behalf of
[Registered Agent of the
Company]
SCHEDULE 8
FORM OF DEED OF
UNDERTAKING AND CONFIRMATION FROM THE COMPANY
[Date]
Shining Rich Holdings Limited
耀富控股有限公司
(the “Investor”)
Dear Sirs
GenTao Capital Limited (the “Company”)
We refer to the charge
over shares in respect of all the shares held by the Chargor in the Company (the “Share Charge”) between Sheng Chen
as chargor (the “Chargor”) and the Investor whereby, inter alia, the Chargor granted a charge over the Shares and
all Related Rights in favour of the Investor.
Capitalised words and expressions
used in this deed which are not expressly defined herein have the same meanings ascribed to them in the Share Charge.
This deed of undertaking
and confirmation is given pursuant to the Share Charge.
1. | For valuable consideration receipt of which is hereby acknowledged,
the Company hereby irrevocably and unconditionally undertakes while an Event of Default has
occurred and is continuing to register in the Register of Members any and all share transfers
to the Investor or its nominee(s) in respect of the Shares submitted to the Company
by the Investor. |
2. | The Company hereby confirms that it has instructed its registered
agent to make an annotation of the existence of the Share Charge and the security interests
created thereby in the Register of Members pursuant to the Share Charge. |
3. | The Company hereby confirms that the Register of Members
provided to the Investor pursuant to the Share Charge is a certified copy of the original
Register of Members and it will not redesignate or otherwise seek to recreate the Register
of Members. |
THIS DEED POLL has
been executed and delivered as a Deed Poll on the day and year first above written.
IN WITNESS WHEREOF this deed has been
executed the day and year above written.
EXECUTED
AND DELIVERED
AS
A DEED
by
for
and on behalf of
GENTAO CAPITAL LIMITED |
)
)
)
)
)
) |
Duly
Authorised Signatory
Name:
Title: |
![](https://www.sec.gov/Archives/edgar/data/1541680/000110465924078193/tm2418852d1_ex99-28img002.jpg) |
EXECUTION PAGE
The parties hereto have executed
and delivered this Deed as a deed the day and year first above written.
THE CHARGOR
SIGNED
SEALED AND DELIVERED
AS
A DEED by
CHEN
SHENG (陈升) |
)
)
)
)
)
) |
/s/ CHEN
SHENG |
![](https://www.sec.gov/Archives/edgar/data/1541680/000110465924078193/tm2418852d1_ex99-28img002.jpg) |
|
) |
CHEN
SHENG (陈升) |
|
[Execution Page –
Share Charge (Guarantor – Issuer) – Chargor]
THE INVESTOR
EXECUTED
AND DELIVERED
AS
A DEED by Wang Peng
,
its authorised signatory for and on behalf of
SHINING
RICH HOLDINGS LIMITED
耀富控股有限公司 |
)
)
)
)
)
)
)
)
)
) |
/s/ Wang
Peng
Name: Wang Peng
Title:
Authorised Signatory |
![](https://www.sec.gov/Archives/edgar/data/1541680/000110465924078193/tm2418852d1_ex99-28img002.jpg) |
[Execution Page –
Share Charge (Guarantor – Issuer) – Investor]
Exhibit 99.29
EXECUTION VERSION
Dated 5th day of July 2024 |
CHEN
SHENG
(陈升)
as
Chargor
IN
FAVOUR OF
SHINING
RICH HOLDINGS LIMITED
耀富控股有限公司
as
Investor
|
CHARGE
OVER SHARES
in
relation to shares in
BEACON
CAPITAL GROUP INC.
|
THIS
DEED is made on the 5th day of July 2024
BY:
CHEN
SHENG ( 陈 升 ), a citizen of the PRC with passport number
[*****] and PRC Identity Card number [*****] and domiciled in the PRC (the “Chargor”)
IN
FAVOUR OF:
SHINING
RICH HOLDINGS LIMITED 耀富控股有限公司,
a BVI business company incorporated under the laws of the British Virgin Islands with limited liability with company number 1972405 and
with its registered office at Portcullis Chambers, 4th Floor Ellen Skelton Building, 3076 Sir Francis Drake Highway, Road Town, Tortola,
British Virgin Islands VG1110 (the “Investor”).
(The
parties referred above shall collectively be referred to as the “Parties” and each a “Party”.)
NOW
THIS DEED WITNESSES as follows:
1. | DEFINITIONS
AND INTERPRETATION |
Unless
otherwise defined in this Deed or unless the context otherwise requires, terms and expressions defined in or construed for the purposes
of the Subscription Agreement as amended from time to time shall bear the same meanings when used herein. In addition:
“Company”
means Beacon Capital Group Inc., a BVI business company incorporated under the laws of the British Virgin Islands with limited liability
with company number 469757 and with its registered office at Vistra Corporate Services Centre, Wickhams Cay II, Road Town, Tortola, VG1110,
British Virgin Islands.
“BVI
Act” means the British Virgin Islands Business Companies Act 2004, as amended and/or supplemented from time to time.
“Charged
Property” means: (a) the Share Collateral (and any part of them); and (b) the Related Rights in relation to the Share
Collateral of the Chargor which from time to time are the subject of the security created or expressed to be created in favour of the
Investor by or pursuant to this Deed.
“Collateral
Rights” means all rights, powers and remedies of the Investor provided by or pursuant to this Deed or by law.
“Delegate”
means any delegate, agent, attorney or co-trustee appointed by the Investor or a Receiver.
“Event
of Default” has the meaning given to the term “Event of Default” under the Note Instrument.
“Guarantor”
means the Chargor.
“Receiver”
means a receiver or receiver and manager or an administrative receiver of the whole or any part of the Charged Property and that term
will include any appointee under a joint and/or several appointment.
“Related
Rights” means, in relation to any asset:
| (a) | the
proceeds of sale of any part of that asset; |
| (b) | all
rights under any licence, agreement for sale, lease or other disposal in respect of that
asset; |
| (c) | all
rights, powers, benefits, claims, contracts, warranties, remedies, security, guarantees,
indemnities and/or covenants for title in respect of that asset; |
| (d) | any
moneys and proceeds paid or payable in respect of that asset; |
| (e) | (in
the case where such asset comprises any share, equity interest or other security) all dividends,
distributions, interest and monies payable in respect thereof and any rights, assets, shares
and/or securities deriving therefrom or accruing thereto whether by way of redemption, bonus,
preference, option, substitution, conversion, compensation or otherwise; and/or |
| (f) | (in
the case where such asset comprises any share, equity interest or other security) any rights
against any clearing system in which such asset is held, |
(in each
case) from time to time.
“Secured
Obligations” means all obligations at any time due, owing or incurred by any of the Obligors or any of their respective Affiliates,
to the Investor under the Transaction Documents, whether present or future, actual or contingent (and whether incurred solely or jointly
and whether as principal or surety or in some other capacity).
“Security
Interest” means:
| (a) | an
interest or power reserved in or created or otherwise arising in or over an interest in any
asset whether under a bill of sale, mortgage, charge, lien, pledge, other security interest
or preferential arrangement (including retention of title), trust or power or otherwise by
way of, or having similar commercial effect to, security for the payment of a debt, any other
monetary obligation or the performance of any other obligation; or |
| (b) | any
agreement to grant or create anything referred to in either of paragraph (a) of this
definition and any other thing which gives a creditor priority to any other creditor with
respect to any asset or an interest in any asset. |
“Security
Period” means the period from and including the date of execution of this Deed to and including the date of discharge of the
security created by this Deed in accordance with Clause 18 (Release of Security).
“Shares”
means all present and future issued share(s) of the Company, including the shares issued as at the date of this Deed specified in
Schedule 1 (Particulars of Shares).
“Share
Collateral” means the Shares beneficially owned by the Chargor and/or any substitute or additional Shares thereof from time
to time, while any Secured Obligations are outstanding.
“Subscription
Agreement” means the subscription agreement dated 2024
entered into between (among others) the Issuer as issuer, the Guarantor as guarantor and the Investor as investor, pursuant to which,
the Issuer agrees to issue to the Investor, and the Investor agrees to subscribe from the Issuer, the Note (as supplemented, modified
or amended from time to time).
“Triggering
Event” means the delivery by the Investor of a written notice in accordance with Clause 28 (Notices) to the Chargor
that an Event of Default has occurred.
In this
Deed:
| 1.2.1 | the
rules of construction set out in clause 1.2 of the Subscription Agreement shall apply
to this Deed mutatis mutandis; and |
| 1.2.2 | any
reference to the Chargor and the Investor shall be construed so as to include its or their
(and any subsequent) successors and any permitted assigns and transferees in accordance with
their respective interests. |
The Chargor
hereby covenants with the Investor to discharge each of the Secured Obligations on their due date in accordance with their respective
terms.
| (a) | The
Chargor hereby charges as legal and beneficial owner in favour of the Investor, as security
for the payment and discharge of the Secured Obligations, by way of first fixed charge, all
the Chargor’s right, title and interest from time to time in and to the Share Collateral
and all its other present and future Related Rights in relation thereto. |
| (b) | The
Chargor hereby authorises the Investor to arrange at any time following the occurrence of
an Event of Default which is continuing for the Charged Property or any part thereof to be
registered in the name of the Investor (or its nominee) thereupon to be held, as so registered,
subject to the terms of this Deed and at the request of the Investor, the Chargor shall without
delay procure that the foregoing shall be done. |
| 4.1 | The
Chargor shall procure that the following annotation be inserted into the register of members
(the “Register of Members”) of the Company maintained by it in accordance
with the BVI Act: |
“All
the ordinary share registered in the name of Sheng Chen (陈升)
are charged in favour of Shining Rich Holdings Limited 耀富控股有限公司
pursuant to a share charge dated [Date], as amended from time to time. The date on which this annotation was entered in the
Register of Members is [Date].”
Immediately
upon entry of such details has been made, and in any event within five (5) Business Days after the date of this Deed, provide a
certified true copy of the annotated Register of Members to the Investor.
| 4.2 | Delivery
of Documents of Title |
The Chargor
shall:
| 4.2.1 | on
the date of this Deed, deposit with the Investor (or procure the deposit with the Investor
of) the following in respect of any Share Collateral existing as at the date of this Deed: |
| (a) | all
original certificates or other documents of title to such Share Collateral (including a certified
copy of the Register of Members to be certified by director, company secretary or legal counsel
of the Company); |
| (b) | undated
share transfer forms in respect of such Share Collateral, executed in blank by or on behalf
of the Chargor and other documents which may be requested by the Investor from time to time
in order to enable the Investor or its nominees to be registered as the owner or otherwise
obtain legal title to any of the Charged Property in the form set out in Schedule 2 (Forms
of Instrument of Transfer); |
| (c) | undated
irrevocable proxy and power of attorney in respect of such Shares, executed in blank by or
on behalf of the Chargor in the form set out in Schedule 3 (Form of Irrevocable Proxy
and Power of Attorney); |
| (d) | an
undated letter of resignation executed by each director of the Company in substantially the
form set out in Schedule 4 (Form of Letter of Resignation); |
| (e) | undated
written resolutions of the board of directors of the Company executed by all of the directors
of the Company in substantially the form set out in Schedule 5 (Form of Written Resolutions); |
| (f) | a
dated letter of undertaking and authorisation executed by each director of the Company in
substantially the form set out in Schedule 6 (Form of Letter of Undertaking and Authorisation); |
| (g) | a
dated letter of instruction executed by or on behalf of the Company to its registered agent
in respect of the Register of Members of the Company substantially in the form set out in
Schedule 7 (Form of Letter to Registered Agent from the Company) which shall
be delivered by, or on behalf of, the Company to the registered agent and acknowledged by
the registered agent promptly following execution of this Deed and in any event no more than
five (5) Business Days after the date of this Deed; and |
| (h) | a
dated deed of undertaking and confirmation executed by or on behalf of the Company substantially
in the form set out in Schedule 8 (Form of Deed of Undertaking and Confirmation from
the Company). |
| 4.2.2 | promptly
and, in any event, within five (5) Business Days of any acquisition of any Shares and/or
upon any Shares becoming subject to security hereunder and/or the accrual, issue or coming
into existence of any stocks, shares, warrants or other securities in respect of or derived
from any Shares, notify the Investor of that occurrence and procure the delivery to the Investor
of: |
| (a) | a
certified true copy of the updated register of members of the Company, together with all
original certificates and other documents of title representing such items; and |
| (b) | undated
share transfer forms or, as the case may be, other appropriate instruments of transfer in
respect of such items executed in blank by or on behalf of the Chargor, substantially in
the form set out in Schedule 2 (Form of Instrument Transfer) (if applicable)
or in such other form as the Investor shall require, |
(except already delivered pursuant
to this Clause 4.2).
| 4.2.3 | promptly
upon any change in any director of the Company after the date of this Deed, procure the delivery
to the Investor of: |
| (a) | (in
the case of a new director) an undated letter of resignation executed by such director of
the Company in substantially the form set out in Schedule 4 (Form of Letter of Resignation); |
| (b) | undated
written resolutions of the board of directors of the Company executed by all of the directors
of the Company in substantially the form set out in Schedule 5 (Form of Written Resolutions); |
| (c) | (in
the case of a new director) an undated undertaking and authorisation executed by such director
of the Company in substantially the form set out in Schedule 6 (Form of Letter of
Undertaking and Authorisation); |
| (d) | (in
the case of a director who was the signatory of the letter of instruction referred to in
Clause 4.2.1(g) on behalf of the Company) a dated letter of instruction executed by
a remaining director (or, where a new director is simultaneously appointed, the new director)
on behalf of the Company to its registered agent in respect of the Register of Members of
the Company substantially in the form set out in Schedule 7 (Form of Letter to Registered
Agent from the Company) which shall be delivered by, or on behalf of, the Company to
the registered agent and acknowledged by the registered agent; and |
| (e) | (in
the case of a director who was the signatory of the deed of undertaking and confirmation
referred to in Clause 4.2.1(h) on behalf of the Company) a dated deed of undertaking
and confirmation executed by a remaining director (or, where a new director is simultaneously
appointed, the new director) on behalf of the Company substantially in the form set out in
Schedule 8 (Form of Deed of Undertaking and Confirmation from the Company). |
| 4.2.4 | promptly
upon any change in the registered agent of the Company after the date of this Deed, procure
the delivery to the Investor of a dated letter of instruction executed by or on behalf of
the Company to its new registered agent in respect of the Register of Members of the Company
substantially in the form set out in Schedule 7 (Form of Letter to Registered Agent
from the Company) which shall be delivered by the Company to the new registered agent
and acknowledged by the new registered agent promptly following delivery of such letter of
instruction. |
| 5.1 | Further
Assurance: General |
The Chargor
shall promptly at its own cost do all such acts and/or execute all such documents (including without limitation assignments, transfers,
mortgages, charges, notices and instructions) as the Investor may reasonably specify (and in such form as the Investor may reasonably
require the Chargor to act/execute in favour of the Investor or its nominee(s)):
| 5.1.1 | to
perfect the security created or intended to be created in respect of the Charged Property
(which may include, without limitation, the execution by the Chargor of a mortgage, charge
or assignment over all or any of the assets constituting, or intended to constitute, any
part of the Charged Property) or for the exercise of the Collateral Rights; and/or |
| 5.1.2 | after
the occurrence of a Triggering Event, to deliver or procure that there shall be delivered
to the Investor all other documents the Investor considers necessary or desirable to enable
the Investor to register such Charged Property in its name or in the name of its nominees
or any delegate and to facilitate the realisation of the Charged Property. |
The Chargor
shall from time to time take all such action (whether or not requested to do so by the Investor) as is or shall be reasonably available
to it (including without limitation obtaining and/or effecting all approvals) as may be necessary for the purpose of the creation, perfection,
protection or maintenance of any security conferred or intended to be conferred on the Investor by or pursuant to this Deed and/or to
exercise its rights and to perform the obligations expressed on its part under this Deed and/or to make this Deed admissible in evidence
in any court having jurisdiction.
The Chargor
shall promptly deliver to the Investor all information that is available to it and that is required in order for the Investor to comply
with any applicable laws or regulations in respect of any Charged Property, or any similar provision in any articles of association or
constitutional documents relating to any Charged Property.
| 5.4 | Implied
Covenants for Title |
The obligations
of the Chargor under this Deed shall be in addition to any covenants for title deemed to be included in this Deed under applicable law.
| 6. | NEGATIVE
PLEDGE AND OTHER UNDERTAKINGS |
The Chargor
undertakes that it shall not, at any time during the subsistence of this Deed, create or permit to subsist any Security over all or any
part of the Charged Property unless expressly permitted under and in accordance with any of the Transaction Documents.
| 6.2 | No
Disposal of Interests |
The Chargor
undertakes that, during the subsistence of this Deed, it shall not, and shall not agree to, except with the prior written consent of
the Investor:
| 6.2.1 | sell,
assign, transfer or otherwise dispose of any Charged Property; |
| 6.2.2 | procure
or permit the Company to issue any new shares; |
| 6.2.3 | appoint
any new director, or otherwise effect any change of director, of the Company; or |
| 6.2.4 | otherwise
procure or permit a change of control over the Company or any Share Collateral. |
| 7. | OPERATIONS
BEFORE AND AFTER TRIGGERING EVENT |
| 7.1.1 | The
Chargor shall, at all times prior to the giving of a notice in writing by the Investor to
the Chargor (a “Triggering Event”) that an Event of Default has occurred,
ensure that all dividends paid or made in respect of any Charged Property are applied in
accordance with the terms of the Subscription Agreement. |
| 7.1.2 | After
the occurrence of a Triggering Event, the Chargor shall promptly pay over and deliver to
the Investor for application in accordance with this Deed (and the Investor may apply in
accordance with this Deed) any and all dividends, distributions, interest and/or other monies
received and/or recovered by it in respect of all or any part of the Charged Property. |
| 7.1.3 | Any
and all dividends, distributions, interest and/or other monies received, recovered or paid/delivered
to the order of the Chargor (other than in cash) in respect of any or all of the Charged
Property shall be held by the Chargor subject to the security constituted by this Deed, and
the Chargor shall promptly deliver such dividends, distributions, interest and/or other monies
to the Investor for application in accordance with this Deed. |
| 7.2 | Operation:
Before Triggering Event |
Prior
to the occurrence of a Triggering Event, the Chargor shall be entitled to exercise all voting rights in relation to any or all of the
Share Collateral and (if applicable) additional shares provided that the Chargor shall not exercise such voting rights in any manner
that could give rise to, or otherwise permit or agree to, any (a) variation of the rights attaching to or conferred by any of the
Share Collateral and (if applicable) additional shares or (b) any liability on the part of the Investor.
| 7.3 | Operation:
After Triggering Event |
The Investor
may, upon and/or after the occurrence of a Triggering Event, at its discretion (in the name of the Chargor or otherwise and without any
further consent or authority from the Chargor):
| 7.3.1 | exercise
(or refrain from exercising) any voting rights in respect of the Charged Property; |
| 7.3.2 | apply
all dividends, distributions, interest and other monies arising from all or any of the Charged
Property in accordance with Clause 12 (Application of Monies); |
| 7.3.3 | have
the right to complete, date and put into effect any documents referred to in Clause 4.2 (Delivery
of Documents of Title); |
| 7.3.4 | transfer
all or any of the Charged Property into the name of such nominee(s) of the Investor
as it shall think fit; and |
| 7.3.5 | exercise
(or refrain from exercising) the powers and rights conferred on or exercisable by the legal
or beneficial owner of the Charged Property, including without limitation the right, in relation
to any company, corporation or entity whose shares, equity interests or other securities
are included in the Charged Property or any part thereof, to concur or participate in: |
| (a) | the
reconstruction, amalgamation, sale or other disposal of such company, corporation or entity
or any of its assets or undertaking (including without limitation the exchange, conversion
or reissue of any shares, equity interests or securities as a consequence thereof); |
| (b) | the
release, modification or variation of any rights or liabilities attaching to such shares,
equity interests or securities; and |
| (c) | the
exercise, renunciation or assignment of any right to subscribe for any shares, equity interests
or securities, |
in each
case in such manner and on such terms as the Investor may think fit, and the proceeds of any such action shall form part of the Charged
Property and may be applied by the Investor in accordance with Clause 12 (Application of Monies).
The Chargor
shall pay when due all calls or other payments which may be or become due in respect of any of the Charged Property, and in any case
of default by the Chargor in such payment, the Investor may, if it thinks fit, make such payment on behalf of the Chargor in which case
any sums paid by the Investor shall be reimbursed by the Chargor to the Investor on demand and shall carry interest from the date of
payment by the Investor until reimbursed in full at the rate and in accordance with clause 8.4 (Default Interest) of the Note
Instrument as if it were an Unpaid Sum thereunder.
| 7.5.1 | The
Chargor shall not exercise any of its rights and powers in relation to any of the Charged
Property in any manner which, in the opinion of the Investor, would prejudice the value of,
or the ability of the Investor to realise, the security created by this Deed. |
| 7.5.2 | The
Investor shall not have any duty to ensure that any dividends, interest or other monies and
assets receivable in respect of the Charged Property are duly and punctually paid, received
or collected as and when the same become due and payable or to ensure that the correct amounts
(if any) are paid or received on or in respect of the Charged Property or to ensure the taking
up of any (or any offer of any) stocks, shares, rights, monies or other property paid, distributed,
accruing or offered at any time by way of redemption bonus, rights, preference, or otherwise
on or in respect of, any of the Charged Property. |
| 7.5.3 | The
Chargor shall not at any time during the Security Period exercise the right to nominate any
person other than the Investor or the nominee(s) of the Investor to enjoy or exercise
any right relating to any of the Charged Property. |
| 8. | ENFORCEMENT
OF SECURITY |
Upon
and after the occurrence of a Triggering Event or if the Chargor requests the Investor to exercise any of its powers under this Deed,
the security created by or pursuant to this Deed is immediately enforceable and the Investor may, with prior notice to the Chargor or
prior authorisation from any court, in its absolute discretion:
| 8.1.1 | enforce
all or any part of such security (at the times, in the manner and on the terms it thinks
fit) and take possession of and hold or dispose of all or any part of the Charged Property;
and |
| 8.1.2 | whether
or not it has appointed a Receiver, exercise all or any of the powers, authorities and discretions
conferred by this Deed on any Receiver or otherwise conferred by law on mortgagees and/or
Receivers. |
| 8.2 | No
Liability as Mortgagee in Possession |
Neither
the Investor nor any Receiver shall be liable to account as a mortgagee in possession in respect of all or any part of the Charged Property
or be liable by reason of taking any action permitted by this Deed or for any loss upon realisation or for any neglect, default or omission
in connection with the Charged Property to which a mortgagee or a mortgagee in possession might otherwise be liable, unless in each case,
directly caused by its wilful misconduct.
The power
of sale or other disposal conferred on the Investor and on any Receiver by this Deed shall arise (and the Secured Obligations shall be
deemed due and payable for that purpose) on execution of this Deed and shall be exercisable in accordance with Clause 8.1 (Enforcement)
and any applicable law or regulation.
Any restrictions
imposed by law on the power of sale or on the consolidation of security (including without limitation any restriction under paragraph
11 of the Fourth Schedule to the Conveyancing and Property Ordinance (Chapter 219 of the Laws of Hong Kong) shall be excluded to the
fullest extent permitted by law.
| 10. | APPOINTMENT
OF RECEIVER |
| 10.1 | Appointment
and Removal |
Upon
and after the occurrence of a Triggering Event or if requested to do so by the Chargor, the Investor shall have the right by deed or
otherwise (acting through an authorised officer of the Investor), without prior notice to the Chargor:
| 10.1.1 | appoint
one or more persons to be a Receiver over the whole or any part of the Charged Property; |
| 10.1.2 | appoint
two or more Receivers of separate parts of the Charged Property; |
| 10.1.3 | remove
(so far as it is lawfully able) any Receiver so appointed; and/or |
| 10.1.4 | appoint
another person(s) as an additional or replacement Receiver(s). |
| 10.2 | Capacity
of Receivers |
Each
person appointed to be a Receiver pursuant to Clause 10.1 (Appointment and Removal) shall be:
| 10.2.1 | entitled
to act individually or together with any other person appointed or substituted as Receiver; |
| 10.2.2 | for
all purposes deemed to be the agent of the Chargor which shall be solely responsible for
his acts, defaults and liabilities and for the payment of his remuneration and no Receiver
shall at any time act as agent for the Investor; and |
| 10.2.3 | entitled
to remuneration for his services at a rate to be fixed by the Investor from time to time. |
If at
any time there is more than one Receiver, each Receiver may separately exercise all of the powers conferred by this Deed and to the exclusion
of any other Receiver (unless the document appointing such Receiver states otherwise).
| 10.4 | Statutory
Powers of Appointment |
The powers
of appointment of a Receiver herein contained shall be in addition to all statutory and other powers of appointment of the Investor under
applicable law and such powers shall remain exercisable from time to time by the Investor in respect of all or any part of the Charged
Property.
Every
Receiver shall (subject to any restrictions in the instrument appointing him but notwithstanding any winding-up or dissolution of the
Chargor) have and be entitled to exercise, in relation to the Charged Property (and any assets of the Chargor which, when got in, would
be Charged Property) or that part thereof in respect of which he was appointed, and as varied and extended by the provisions of this
Deed (in the name of or on behalf of the Chargor or in his own name and, in each case, at the cost of the Chargor):
| 11.1.1 | all
the powers conferred by the Conveyancing and Property Ordinance (Chapter 219 of the Laws
of Hong Kong) on mortgagors and on mortgagees in possession and on receivers appointed under
that Ordinance (as if the Charged Property constituted property that is subject to that Ordinance
and as if such Receiver were appointed under that Ordinance), free from any limitation under
paragraph 11 of the Fourth Schedule to that Ordinance; |
| 11.1.2 | all
rights, powers and discretions conferred by this Deed (either expressly or impliedly) or
by law on the Chargor; |
| 11.1.3 | all
the powers and rights of an absolute owner and power to do or omit to do anything which the
Chargor itself could do or omit to do; and |
| 11.1.4 | the
power to do all things (including without limitation bringing or defending proceedings in
the name or on behalf of the Chargor) which seem to that Receiver to be incidental or conducive
to (a) any of the functions, powers, authorities or discretions conferred on or vested
in him or (b) the exercise of any Collateral Rights (including without limitation realisation
of all or any part of the Charged Property) or (c) bringing to his hands any assets
of the Chargor forming, or which, when got in, would be part of the Charged Property. |
| 11.2 | Additional
Powers of Receiver |
In addition
to and without prejudice to the generality of the foregoing, every Receiver shall (subject to any limitations or restrictions expressed
in the instrument appointing him but notwithstanding any winding-up or dissolution of the Chargor) have the following powers in relation
to the Charged Property (and any assets of the Chargor which, when got in, would be part of the Charged Property) in respect of which
he was appointed (and every reference in this Clause 11.2 to the “Charged Property” shall be read as a reference to
that part of the Charged Property in respect of which such Receiver was appointed):
power to
enter upon, take immediate possession of, collect and get in the Charged Property including without limitation dividends and other income
whether accrued before or after the date of his appointment;
| 11.2.2 | Proceedings
and Claims |
power to
bring, prosecute, enforce, defend and abandon applications, claims, disputes, actions, suits and proceedings in connection with all or
any part of the Charged Property or this Deed in the name of the Chargor or in his own name and to submit to arbitration, negotiate,
compromise and settle any such applications, claims, disputes, actions, suits or proceedings;
power to
carry on and manage, or concur in the carrying on and management of or to appoint a manager of, the whole or any part of the Charged
Property or any business relating thereto in such manner as he shall in his absolute discretion think fit;
power to
appoint, hire and employ officers, employees, contractors, agents, advisors and others for any of the purposes of this Deed and/or to
guard or protect the Charged Property upon terms as to remuneration or otherwise as he may think fit and to discharge any such persons
and any such persons appointed, hired or employed by the Chargor;
power to
give a valid receipt for any monies and execute any assurance or thing which may be proper or desirable for realising any Charged Property;
| 11.2.6 | Deal
with Charged Property |
power,
in relation to the Charged Property and each and every part thereof, to sell, transfer, convey, dispose of or concur in any of the foregoing
by the Chargor or any other receiver or manager of the Chargor (including without limitation to or in relation to the Investor) in such
manner and generally on such terms as he thinks fit , and the consideration for any such transaction may consist of cash, debentures
or other obligations, shares, stock or other valuable consideration and any such consideration may be payable in a lump sum or by instalments
spread over any period which the Receiver thinks fit;
power to
purchase, lease, hire or otherwise acquire any assets or rights of any description which he shall in his absolute discretion consider
necessary or desirable for the carrying on, improvement or realisation of the whole or any part of the Charged Property or otherwise
for the benefit of the whole or any part of the Charged Property;
power to
promote, procure the formation or otherwise acquire the share capital of, any body corporate with a view to such body corporate becoming
a subsidiary of the Chargor or otherwise and purchasing, leasing or otherwise acquiring an interest in the whole or any part of the Charged
Property or carrying on any business in succession to the Chargor or any subsidiary of the Chargor;
power to
delegate his powers in accordance with this Deed;
power to
effect, maintain or renew indemnity and other insurances and to obtain bonds and performance guarantees and do any other act which the
Chargor might do in the ordinary conduct of its business to protect or improve any Charged Property;
power to
raise or borrow money from the Investor or any other person to rank either in priority to the security constituted by this Deed or any
part of it or otherwise and with or without a mortgage or charge on the Charged Property or any part of it on such terms as he shall
in his absolute discretion think fit (and no person lending such money shall be concerned to see or enquire as to the propriety or purpose
of the exercise of such power or the application of money so raised or borrowed);
| 11.2.12 | Redemption
of Security |
power to
redeem, discharge or compromise any security whether or not having priority to the security constituted by this Deed or any part of it;
| 11.2.13 | Covenants,
Guarantees and Indemnities |
power to
enter into bonds, covenants, guarantees, commitments, indemnities and other obligations or liabilities as he shall think fit, to make
all payments needed to effect, maintain or satisfy such obligations or liabilities and to use the company seal of the Chargor;
power to
appoint an attorney or solicitor or accountant or other professionally qualified person to assist him in the performance of his functions;
power to
make any payment which is necessary or incidental to the performance of his functions; and
| 11.2.16 | Exercise
of Powers in Chargor’s Name |
power to
exercise any or all of the above powers on behalf of and in the name of the Chargor (notwithstanding any winding-up or dissolution of
the Chargor) or on his own behalf.
In making
any sale or other disposal of all or any part of the Charged Property or any acquisition in the exercise of their respective powers (including
without limitation a disposal by a Receiver to any subsidiary of the Chargor or other body corporate as is referred to in Clause 11.2.8
(New Subsidiary)), a Receiver or the Investor may accept or dispose of as, and by way of consideration for, such sale or other
disposal or acquisition, cash, shares, loan capital or other obligations, including without limitation consideration fluctuating according
to or dependent upon profit or turnover and consideration the amount whereof is to be determined by a third party. Any such consideration
may, if thought expedient by the Receiver or the Investor, be nil or may be payable or receivable in a lump sum or by instalments. Any
contract for any such sale, disposal or acquisition by the Receiver or the Investor may contain conditions excluding or restricting the
personal liability of the Receiver or the Investor.
| 11.4 | Relationship
with Investor |
To the
fullest extent allowed by law, any right, power or discretion conferred by this Deed (either expressly or impliedly) or by law on a Receiver
may after the Security conferred or intended to be conferred on the Investor by or pursuant to this Deed becomes enforceable be exercised
by the Investor in relation to any Charged Property without first appointing a Receiver and notwithstanding the appointment of a Receiver.
Save
as otherwise expressly provided in this Deed, all moneys and/or non-cash recoveries and/or proceeds received or recovered by the Investor
or any Receiver pursuant to this Deed or the powers conferred by it shall (subject to the claims of any person having prior rights thereto
and subject to Clause 12.2 (Suspense Account)) be applied:
| 12.1.1 | first,
in the payment of the costs, charges and expenses incurred and payments made by any Receiver,
the payment of his remuneration and the discharge of any liabilities incurred by such Receiver
in, or incidental to, the exercise of any of his powers; |
| 12.1.2 | second,
be applied by the Investor as the Investor shall think fit in discharge of the Secured Obligations;
and |
| 12.1.3 | third,
following such payments, the remaining balance (if any) shall be paid to the Chargor for
its rights and interests or such other person as may be entitled thereto. |
This
Clause does not prejudice the right of the Investor to recover from the Chargor any shortfall between (i) any Unpaid Sum; and (ii) the
moneys and/or non-cash recoveries and/or proceeds received or recovered under this Clause.
All monies
received, recovered or realised under this Deed by the Investor or any Receiver or the powers conferred by it (including the proceeds
of any conversion of currency) may in its discretion be credited to and held in any suspense or impersonal account pending their application
from time to time in or towards the discharge of any of the Secured Obligations in accordance with Clause 12.1 (Order of Application).
| 12.3 | Application
by Chargor |
Any application
under this Clause 12 shall override any application by the Chargor.
| 13. | RECEIPT
AND PROTECTION OF PURCHASERS |
| 13.1 | Receipt
and Consideration |
The receipt
of the Investor or any Receiver shall be conclusive discharge to a purchaser of any part of the Charged Property from the Investor or
such Receiver and in making any sale or disposal of any part of the Charged Property or making any acquisition, the Investor or any Receiver
may do so for such consideration, in such manner and on such terms as it thinks fit.
| 13.2 | Protection
of Purchasers |
No purchaser
or other person dealing with the Investor or any Receiver shall be bound to inquire whether the right of the Investor or such Receiver
to exercise any of its powers has arisen or become exercisable or be concerned with any propriety or regularity on the part of the Investor
or such Receiver in such dealings. The protection given to purchasers from a mortgagee in sections 52 and 55 of the Conveyancing and
Property Ordinance (Chapter 219 of the Laws of Hong Kong) shall apply mutatis mutandis to purchaser(s) and other person(s) dealing
with the Investor or any Receiver.
| 14.1 | Appointment
and Powers |
The Chargor
by way of security irrevocably (within the meaning of Section 4 of the Powers of Attorney Ordinance (Chapter 31 of the Laws of Hong
Kong) appoints the Investor and any Receiver severally to be its attorney and in its name, on its behalf to execute, deliver and perfect
all documents and do all things which the Investor or such Receiver may consider to be necessary for:
| 14.1.1 | carrying
out any obligation imposed on the Chargor by this Deed or any other agreement binding on
the Chargor to which the Investor is party (including without limitation the execution and
delivery of any deeds, charges, assignments or other security and any transfers of the Charged
Property or any part thereof); and |
| 14.1.2 | enabling
the Investor and any Receiver to exercise, or delegate the exercise of, any of the rights,
powers and authorities conferred on them by or pursuant to this Deed or by law (including,
without limitation, upon or after the occurrence of a Triggering Event, the exercise of any
right of a legal or beneficial owner of the Charged Property or any part thereof). |
The Chargor
shall ratify and confirm all things done and all documents executed by any attorney in the lawful exercise or purported exercise of all
or any of its powers pursuant to this Deed.
The Chargor
represents and warrants to the Investor that:
| 15.1.1 | the
Chargor is aged 18 or above and of full mental capacity; |
| 15.1.2 | subject
to Legal Reservations, each of the obligations expressed to be assumed by him in this Deed
are legal, valid, binding and enforceable obligation, and this Deed creates the security
interests which it purports to create and such security interests are valid and effective; |
| 15.1.3 | the
entry into and performance by him of, and the transactions contemplated by, this Deed do
not and will not: |
| (a) | conflict
with any law or regulation applicable to him; |
| (b) | conflict
with any agreement or instrument binding upon him or any of his assets; or |
| (c) | result
in the existence of or oblige him to create any security over all or any of his assets (other
than the security constituted pursuant to this Deed); |
| 15.1.4 | he
has the power to enter into, perform and deliver, and has taken all necessary actions to
authorise his entry into, performance and delivery of, this Deed; |
| 15.1.5 | no
limit on his powers will be exceeded as a result of the grant of security contemplated by
this Deed; |
| 15.1.6 | all
Authorisation required or desirable: |
| (a) | to
enable him lawfully to enter into, exercise its rights and comply with his obligations in
this Deed; |
| (b) | to
make this Deed admissible in evidence in Hong Kong; and/or |
| (c) | to
enable him to create the security expressed to be created by him pursuant to this Deed and
to ensure that such security has the priority and ranking it is expressed to have, |
have been
obtained or effected and are in full force and effect;
| 15.1.7 | subject
to Legal Reservations, the choice of the laws of Hong Kong as the governing law of this Deed
will be recognised and enforced in the courts of Hong Kong; |
| 15.1.8 | subject
to Legal Reservations, any judgment obtained in the courts of Hong Kong in relation to this
Deed will be recognised and enforced in Hong Kong; |
| 15.1.9 | save
and except for those as set out in Clause 4 (Perfection of Security) herein, under
the law of the British Virgin Islands, it is not necessary that this Deed be filed, recorded
or enrolled with any court or other authority in that jurisdiction or that any stamp, registration
or similar tax be paid on or in relation to this Deed; |
| 15.1.10 | all
consents necessary to enable any asset that is expressed to be subject to any security under
this Deed to be the subject of effective security under this Deed have been obtained and
are in full force and effect; |
| 15.1.11 | he
is, and will be, the sole and absolute beneficial owner of the Charged Property free from
Security Interest (other than the security constituted pursuant to this Deed) and this Deed
creates in favour of the Investor first ranking Security Interest over the Charged Property; |
| 15.1.12 | the
Shares and, to the extent applicable, the other Share Collateral, are duly authorised, validly
issued, fully paid and not subject to any option to purchase or similar right and the particulars
of the Shares set out in Schedule 1 (Particulars of Shares) are accurate and the Shares
described therein constitute 100% of the issued shares of the Company; |
| 15.1.13 | he
has not sold or otherwise disposed of, or created, granted or permitted to subsist any security
over, all or any of his right, title and interest in the Charged Property (other than the
security constituted pursuant to this Deed and other than as expressly permitted under this
Deed); |
| 15.1.14 | the
Share Collateral has been validly issued and allotted by the Company and are fully paid up
and there are no monies or liabilities payable or outstanding by the Chargor in relation
to any of the Shares; |
| (a) | no
petition has been presented, and no order has been made, for the bankruptcy of the Chargor
or for the appointment of a bankruptcy trustee to the Chargor; |
| (b) | the
Chargor has not proposed or agreed to a composition, compromise, assignment or arrangement
with any of his creditors; and |
| (c) | the
Chargor is not subject to or threatened by any other procedures or steps which are analogous
to those set out above. |
| 15.1.16 | no
Event of Default is continuing or might reasonably be expected to result from the entry into,
the performance of, or any transaction contemplated by this Deed; |
| 15.1.17 | no
other event or circumstance is outstanding which constitutes (or, with the expiry of a grace
period, the giving of notice, the making of any determination or any combination of any of
the foregoing, would constitute) a default or termination event (however described) under
any other agreement or instrument which is binding on him or to which his assets are subject;
and |
| 15.1.18 | no
litigation, arbitration, investigation or administrative proceedings of or before any court,
arbitral body or agency been started or threatened, or is pending, against him or his assets
which may have a Material Adverse Effect. |
Each
of the representations and warranties above shall be deemed to be repeated by the Chargor on each day of the Security Period by reference
to the facts and circumstances existing at the date on which such representation or warranty is deemed to be made or repeated.
| 16.1 | The
Chargor hereby covenants during the Security Period it will remain the legal and the beneficial
owner of the Charged Property (subject only to the security created by this Deed) and that
it shall not: |
| 16.1.1 | create
or permit to subsist any security (other than that created by this Deed) on or in respect
of the whole of any part of the Charged Property or any of its interest therein; or |
| 16.1.2 | sell,
lease, assign, lend, dispose of, transfer or otherwise deal with any of its interest in the
Charged Property (other than pursuant to this Deed) and in any such case, without the prior
written consent of the Investor; or |
| 16.1.3 | do,
or permit to be done, any act or thing that would or might depreciate, jeopardise or otherwise
prejudice the security held by the Investor, or diminish the value of any of the Charged
Property or the effectiveness of the security created by this Deed. The Chargor shall, promptly
on becoming aware, notify the Investor in writing of any representation or warranty set out
in Clause 15.1 (Representations) which is incorrect or misleading in any respect when
made or deemed to be repeated and any breach of any covenant set out in this Deed. |
| 16.2 | The
Chargor shall deliver to the Investor immediately upon receipt by the Chargor copies of all
notices of general meetings, proposed shareholder resolutions of the Company, financial statements
and all other materials distributed to, or requiring action by, shareholders of the Company
from time to time and all other materials and information distributed by the Company to,
or requiring action by, the shareholders of the Company and such other information concerning
the Company (that the Chargor as a shareholder of the Company would have known) as the Investor
shall from time to time request. |
| 16.3 | The
Chargor shall remain liable to perform all the obligations assumed by it in relation to the
Charged Property and the Investor shall be under no obligation of any kind whatsoever in
respect thereof or be under any liability whatsoever in the event of any failure by the Chargor
to perform its obligations in respect thereof. |
| 16.4 | The
Chargor shall not take, or allow the taking of, any action on its behalf which may result
in the rights attaching to, or conferred by, all or any of the Charged Property being altered. |
| 16.5 | The
Chargor shall not waive, release, settle, compromise, abandon or set-off any claim or the
liability of any person in respect of the Related Rights, or do or omit to do any other act
or thing whereby the recovery in full of the Related Rights as and when they become payable
may be impeded. |
| 16.6 | The
Chargor shall not, and shall procure that there shall not, effect any sale, transfer or disposal
of any Shares or Charged Property or any interest therein, without the prior written consent
of the Investor. |
| 16.7 | If
the Chargor sells, assigns, or otherwise disposes of or parts with possession of or deals
with or otherwise creates an interest in (a “Disposal”) any Charged Property
in breach of Clause 16.6, then, despite that Disposal: |
| 16.7.1 | the
Investor is not to be taken to have authorised the Disposal; |
| 16.7.2 | the
Investor is not to be taken to have agreed that the Disposal would extinguish any Security
Interest the Investor holds in that Charged Property; |
| 16.7.3 | to
the extent the law allows, the Security Interest continues in that Charged Property; and |
| 16.7.4 | the
Chargor must give the Investor prompt notice of the Disposal and any information requested
by the Investor in relation to the other person or persons party to the Disposal to enable
the Investor to perfect the Security Interest as against that person or those persons. |
| 16.8 | The
Chargor shall promptly: |
| (a) | obtain,
comply with and do all that is necessary to maintain in full force and effect; and |
| (b) | supply
certified copies to the Investor of, |
any authorisation
required under any law or regulation of its jurisdiction of incorporation to enable it to perform its obligations under this Deed and
to ensure the legality, validity, enforceability or admissibility in evidence in its jurisdiction of incorporation of this Deed.
| 17. | EFFECTIVENESS
OF SECURITY |
The security
created by or pursuant to this Deed shall remain in full force and effect as a continuing security for the Secured Obligations unless
and until discharged by the Investor. No part of the security from time to time intended to be constituted by this Deed will be
considered satisfied or discharged by any intermediate payment, discharge or satisfaction of the whole or any part of the Secured Obligations.
The security
created by this Deed and the Collateral Rights shall be cumulative, in addition to and independent of every other security which the
Investor may at any time hold for any or all of the Secured Obligations or any rights, powers and remedies provided by law. No prior
security held by the Investor over the whole or any part of the Charged Property shall merge into the security constituted by this Deed.
The foregoing applies notwithstanding any receipt, release or discharge endorsed or given in respect of or under any such other Security.
| 17.3 | Chargor’s
Obligations |
None
of the obligations of the Chargor under this Deed or the Collateral Rights shall be affected by an act, omission, matter, thing or event
which, but for this Clause 17.3, would reduce, release or prejudice any of its obligations under this Deed, any of the obligations of
the Chargor under this Deed or the Collateral Rights including (without limitation and whether or not known to it or the Investor):
| 17.3.1 | the
winding-up, dissolution, administration, reorganisation, death, insolvency, incapacity or
bankruptcy of the Chargor or any other person or any change in its status, function, control
or ownership; |
| 17.3.2 | any
of the obligations of the Chargor or any other person under any Transaction Document, or
under any other security relating to any Transaction Document, being or becoming illegal,
invalid, unenforceable or ineffective in any respect; |
| 17.3.3 | any
time, waiver or consent granted to, or composition with, the Chargor or any other person; |
| 17.3.4 | the
release of the Chargor or any other person under the terms of any composition or arrangement
with any creditor of the Chargor or any other person; |
| 17.3.5 | the
taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to
perfect, take up or enforce, any rights against, or security over assets of, the Chargor
or other person or any non-presentation or non-observance of any formality or other requirement
in respect of any instrument or any failure to realise the full value of any security; |
| 17.3.6 | any
incapacity or lack of power, authority or legal personality of or dissolution or change in
the members or status of the Chargor or any other person; |
| 17.3.7 | any
amendment, novation, supplement, extension (whether of maturity or otherwise) or restatement
(in each case however fundamental and of whatsoever nature, and whether or not more onerous)
or replacement of a Transaction Document or any other document or security or of the Secured
Obligations; |
| 17.3.8 | any
unenforceability, illegality or invalidity of any obligation of any person under any Transaction
Document or any other document or security; |
| 17.3.9 | any
insolvency or similar proceedings; |
| 17.3.10 | the
existence of any claim, set-off right or other right that the Chargor may have at any time
against the Investor or any other person; or |
| 17.3.11 | any
law, regulation or decree or order of any jurisdiction affecting the Chargor. |
Without
prejudice to the generality of Clause 17.3 (Chargor’s Obligations), the Chargor expressly confirms that it intends that
the security created under this Deed, and the Collateral Rights, shall extend from time to time to any (however fundamental and of whatsoever
nature, and whether or not more onerous) variation, increase, extension or addition of or to any of the Transaction Documents or any
other security relating to any Transaction Document.
No failure
on the part of the Investor to exercise, or any delay on its part in exercising, any Collateral Right shall operate as a waiver thereof
or constitute an election to affirm this Deed. No election by the Investor or any Receiver to affirm this Deed or to waive any Collateral
Rights shall be effective unless it is in writing. The Collateral Rights are cumulative and not exclusive of the rights of the Investor
or any Receiver under the general law, nor shall any single or partial exercise of any Collateral Right preclude any further or other
exercise of that or any other Collateral Right.
The Chargor
waives any right it may have of first requiring the Investor (or any trustee or agent on its behalf) to proceed against or enforce any
other right or security or claim payment from any person or file any proof or claim in any insolvency, administration, winding-up or
liquidation proceedings relative to any other person before claiming from the Chargor under this Deed.
None
of the Investor, its nominee(s) or any Receiver shall be liable by reason of (a) taking any action permitted by this Deed or
(b) any neglect or default in connection with all or any part of the Charged Property or (c) taking possession of or realising
all or any part of the Charged Property, except in the case of wilful default upon its part (as finally judicially determined).
If, at
any time, any provision of this Deed is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction,
neither the legality, validity or enforceability of the remaining provisions of this Deed under such laws nor of such provision under
the laws of any other jurisdiction shall in any way be affected or impaired thereby and, if any part of the security intended to be created
by or pursuant to this Deed is invalid, unenforceable or ineffective for any reason, that shall not affect or impair any other part of
that security.
The Investor
shall not be obliged to make any demand of or enforce any rights or claim against the Chargor or any other person, to take any action
or obtain judgment in any court against the Chargor or any other person or to make or file any proof or claim in a liquidation, bankruptcy
or insolvency of the Chargor or any other person or to enforce or seek to enforce any other security in respect of any or all of the
Secured Obligations before exercising any Collateral Right.
Until
the time when (i) all Secured Obligations have been irrevocably discharged in full and (ii) all amounts which may be or become
payable by the Chargor and the Chargor under or in connection with the Transaction Documents have been irrevocably paid in full, the
Chargor will not (unless the Investor otherwise directs) exercise any rights which it may have by reason of performance by it of its
obligations under this Deed:
| 17.10.1 | to
be indemnified by the Chargor; |
| 17.10.2 | to
claim any contribution from any guarantor of the Chargor’s obligations under any or
all of the Transaction Documents; and/or |
| 17.10.3 | to
take the benefit (in whole or in part and whether by way of subrogation or otherwise) of
any rights of the Investor under the Transaction Documents or of any other guarantee or security
taken pursuant to, or in connection with, the Transaction Documents by the Investor; |
| 17.10.4 | to
bring legal or other proceedings for an order requiring any Obligor to make any payment,
or perform any obligation, in respect of which the Chargor has given a guarantee, security,
undertaking or indemnity under any Transaction Document; |
| 17.10.5 | to
exercise any right of set-off against any Obligor; and/or |
| 17.10.6 | to
claim or prove as a creditor of any Obligor in competition with the Investor. |
If the Chargor shall receive
any benefit, payment or distribution in relation to any such right it shall hold that benefit, payment or distribution (or so much of
it as may be necessary to enable all Secured Obligations to be paid in full) on trust for the Investor, and shall promptly pay or transfer
the same to the Chargor (or as the Investor may direct) for application in accordance with Clause 12.1 (Order of Application).
| 17.11 | Settlement
conditional |
Any settlement,
discharge or release hereunder in relation to the Chargor or all or any part of the Charged Property shall be conditional upon no security
or payment by the Chargor to the Investor being avoided or reduced by virtue of any bankruptcy, insolvency, liquidation or similar laws
of general application or any similar event or for any other reason and shall in the event of any such avoidance or reduction or similar
event be void, and the liability of the Chargor under this Deed and the Security Interest created by this Deed shall continue as if such
payment, settlement, discharge or release had not occurred.
| 18.1 | Redemption
of Security |
Upon
the time when (i) all Secured Obligations have been irrevocably discharged in full, and (ii) all amounts which may be or become
payable by the Chargor under or in connection with the Transaction Documents have been irrevocably paid in full, the Investor shall,
at the request (with reasonable notice) and cost of the Chargor, as soon as reasonably practicable, release and cancel the security constituted
by this Deed on the relevant Share Collateral and procure the reassignment to the Chargor of the property and assets assigned to the
Investor and the return to the Chargor of the certificates and documents delivered to the Investor pursuant to this Deed (to the extent
not otherwise sold, assigned or otherwise disposed of or applied in accordance with this Deed), in each case subject to Clauses 18.2
(Avoidance of Payments) and 17.11 (Settlement conditional) and without recourse to, or any representation or warranty by,
the Investor or any of its nominees.
| 18.2 | Avoidance
of Payments |
If the
Investor reasonably considers that any amount paid or credited to or recovered by the Investor from the Chargor or the Guarantor is capable
of being avoided or reduced by virtue of any bankruptcy, insolvency, liquidation or similar laws, the liability of the Chargor under
this Deed and the security constituted by this Deed shall continue and such amount shall not be considered to have been irrevocably paid.
| 19. | SUBSEQUENT
AND PRIOR SECURITY INTERESTS |
| 19.1 | Subsequent
security interests |
If the
Investor (acting in its capacity as chargee or otherwise) at any time receives or is deemed to have received notice of any subsequent
security or other interest affecting all or any part of the Charged Property or any assignment or transfer of the Charged Property which
is prohibited by the terms of this Deed or the Transaction Documents, all payments thereafter by or on behalf of the Chargor to the Investor
shall be treated as having been credited to a new account of the Investor and not as having been applied in reduction of the Secured
Obligations as at the time when (or at any time after) the Investor received such notice of such subsequent security or other interest
or such assignment or transfer.
| 19.2 | Prior
security interests |
In the
event of any action, proceeding or step being taken to exercise any powers or remedies conferred by any prior ranking security or upon
the exercise by the Investor or any Receiver of any power of sale under this Deed or any Collateral Right, the Investor may redeem any
prior ranking security over or affecting any Charged Property or procure the transfer of any such prior ranking security to itself. The
Investor may settle and agree the accounts of the beneficiary of any such prior security and any accounts so settled and agreed will
be conclusive and binding on the Chargor. All principal, interest, costs, charges, expenses and/or other amounts relating to and/or incidental
to any such redemption or transfer shall be paid by the Chargor to the Investor upon demand.
| 20. | CURRENCY
CONVERSION AND INDEMNITY |
For the
purpose of or pending the discharge of any of the Secured Obligations the Investor may convert any money received, recovered or realised
or subject to application by it under this Deed from one currency to another, as the Investor may think fit, and any such conversion
shall be effected at the Investor’s spot rate of exchange (or, if no such spot rate of exchange is quoted by the Investor, such
other rate of exchange as may be available to the Investor) for the time being for obtaining such other currency with such first-mentioned
currency.
If any
sum (a “Sum”) owing by the Chargor under this Deed or any order or judgment given or made in relation to this Deed
has to be converted from the currency (the “First Currency”) in which such Sum is payable into another currency (the
“Second Currency”) for the purpose of:
| 20.2.1 | making
or filing a claim or proof against the Chargor; |
| 20.2.2 | obtaining
an order or judgment in any court or other tribunal; |
| 20.2.3 | enforcing
any order or judgment given or made in relation to this Deed; or |
| 20.2.4 | applying
the Sum in satisfaction of any of the Secured Obligations, |
the Chargor
shall indemnify the Investor from and against any loss suffered or incurred as a result of any discrepancy between (a) the rate
of exchange used for such purpose to convert such Sum from the First Currency into the Second Currency and (b) the rate or rates
of exchange available to the Investor at the time of such receipt or recovery of such Sum.
| 21. | COSTS,
EXPENSES AND INDEMNITY |
The Chargor
shall, on demand of the Investor, reimburse the Investor on a full indemnity basis for all costs and expenses (including legal fees and
any value added tax) incurred by the Investor in connection with (a) the execution of this Deed or otherwise in relation to this
Deed, including but not limited to costs and expenses relating to any amendment of this Deed, (b) the perfection or enforcement
of the security constituted by this Deed, (c) the exercise of any Collateral Right, together with interest from the date such costs
and expenses were incurred to the date of reimbursement of the same by the Chargor, and (d) the release of the security constituted
by this Deed.
The Chargor
shall pay all stamp, registration and other Taxation to which this Deed, the security contemplated in this Deed and/or any judgment given
in connection with this Deed is, or at any time may be, subject and shall, from time to time, indemnify the Investor on demand against
any liabilities, costs, claims and/or expenses resulting from any failure to pay or delay in paying any such Tax.
The Chargor
shall, notwithstanding any release or discharge of all or any part of the security constituted by this Deed, indemnify the Investor,
its agents, attorneys and any Receiver against any action, proceeding, claims, losses, liabilities and costs which it may sustain as
a consequence of any breach by the Chargor of the provisions of this Deed, the exercise or purported exercise of any of the rights and
powers conferred on any of them by this Deed or otherwise relating to the Charged Property or any part thereof.
| 22. | PAYMENTS
FREE OF DEDUCTION |
All payments
to be made to the Investor under this Deed shall be made free and clear of and without deduction for or on account of any Taxation unless
the Chargor is required to make such payment subject to the deduction or withholding of any Taxation, in which case the sum payable by
the Chargor in respect of which such deduction or withholding is required to be made shall be increased to the extent necessary to ensure
that, after the making of such deduction or withholding, the person on account of whose liability to tax such deduction or withholding
has been made receives and retains (free from any liability in respect of any such deduction or withholding) a net sum equal to the sum
which it would have received and so retained had no such deduction or withholding been made or required to be made.
| 22.2 | No
set-off or counterclaim |
All payments
to be made by the Chargor under this Deed shall be calculated and be made without (and free and clear of any deduction for) set-off or
counterclaim.
| 23. | DISCRETION
AND DELEGATION |
Any liberty
or power which may be exercised or any determination which may be made under this Deed by the Investor or any Receiver may, subject to
the applicable terms and conditions of, as the case may be, the Transaction Documents, be exercised or made in its absolute and unfettered
discretion without any obligation to give reasons.
| (a) | Each
of the Investor and any Receiver shall have full power to delegate (either generally or specifically)
the powers, authorities and discretions conferred on it by this Deed (including without limitation
the power of attorney under Clause 14 (Power of Attorney)) on such terms and conditions
as it shall see fit which delegation shall not preclude any subsequent exercise, any subsequent
delegation or any revocation of such power, authority or discretion by the Investor or any
Receiver. |
| (b) | Neither
the Investor nor any Receiver will be in any way liable or responsible to the Chargor for
any loss or liability arising from any act, default, omission, neglect or misconduct on the
part of any delegate or sub-delegate. |
In acting
as chargee, the Investor shall have the benefit of all indemnities, protections and rights on its part set out in the Transaction Documents,
as if set out fully herein.
The Investor
may set off any matured obligation due from the Chargor under any or all of the Transaction Documents (to the extent beneficially owned
by the Investor) against any matured obligation owed by the Investor to the Chargor, regardless of the place of payment, booking branch
or currency of either obligation. If such obligations are in different currencies, the Investor may convert either obligation at a market
rate of exchange in its usual course of business for the purpose of such set-off.
This
Deed shall be binding upon and enure to the benefit of each party hereto and its and/or any subsequent successors and permitted assigns
and transferees. Without prejudice to the foregoing, this Deed shall remain in effect despite any amalgamation or merger (however effected)
relating to the Investor; and references to the Investor herein shall be deemed to include any person who, under the laws of its jurisdiction
of incorporation or domicile, has assumed the rights and obligations of the Investor under this Deed or to which, under such laws, those
rights and obligations have been transferred.
| 25.2 | No
Assignment or Transfer by Chargor |
The Chargor
may not assign or transfer any or all of its rights (if any) and/or obligations under this Deed.
| 25.3 | Assignment
or Transfer by Investor |
The Investor
may assign or transfer any or all of its rights (if any) and/or obligations under this Deed.
The Investor
shall be entitled to disclose such information concerning the Chargor or any other person and this Deed as the Investor considers appropriate
to any actual or proposed direct or indirect successor or to any person to whom information may be required to be disclosed by applicable
law.
| 26. | AMENDMENTS
AND WAIVERS |
| 26.1 | Any
provision of this Deed may be amended or waived only by agreement in writing between the
Chargor and the Investor. No third party’s signature is required for any amendment. |
| 26.2 | No
failure on the part of the Investor to exercise, or delay on its part in exercising, any
or all of its rights hereunder shall operate as a waiver thereof or constitute an election
to affirm this Deed. No election to affirm this Deed on the part of the Investor shall be
effective unless it is in writing. No single or partial exercise of any such right or remedy
shall preclude any further or other exercise of such or any other right or remedy. |
The perpetuity
period under the rule against perpetuities, if applicable to this Deed, shall be the period of 80 years from the date of the Subscription
Agreement.
| 28.1 | Any
notice, claim or demand in connection with this Deed shall be in writing, in English language,
and marked “IMPORTANT LEGAL NOTICE” (each a “Notice”), and
shall be delivered or sent to the recipient at its email address, facsimile number or address
(where applicable) listed below, or any other email address, facsimile number or address
notified to the sender by the recipient for the purposes of this Instrument: |
|
To the Chargor: |
CHEN
SHENG (陈升)
Address:
10 Jiuxianqiao East Road, Chaoyang District, Beijing 100016
Email:
Josh.Chen@vnet.com
Facsimile:
+86 10 8456 4234 |
|
To the Investor: |
SHINING
RICH HOLDINGS LIMITED 耀富控股有限公司
Email:
workforpapper@163.com
Attention:
Fang Li / Tong Lin |
| 28.2 | If
any Investor that is a natural Person dies, until the Party giving a Notice has received
notice in writing of the grant of probate of his will or letters of administration of his
estate (or equivalent), any Notice so given shall be as effectual as if he was still living. |
| 28.3 | Without
prejudice to Clause 28.2, any Notice shall be deemed to have been served: (a) if served
by hand, when delivered and proof of delivery is obtained by the delivery party, (b) if
served by overnight courier, on the next Business Day, or (c) if sent by facsimile or
email, only when received in legible form by at least one of the relevant facsimile number
or email addresses (as applicable) of the person(s) to whom the communication is made.
Any Notice received on a Sunday or public holiday shall be deemed to be received on the next
Business Day. |
This
Deed may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument.
| 30.1 | A
Person who is not a Party has no right under the Contracts (Rights of Third Parties) Ordinance
(Chapter 623 of the Laws of Hong Kong) to enforce or to enjoy the benefit of any term of
this Deed. |
| 30.2 | Notwithstanding
any term of this Deed, the consent of any person who is not a Party is not required to rescind
or vary this Deed at any time. |
This
Deed shall be governed by and shall be construed in accordance with Hong Kong law.
| 32.1 | With
respect to any dispute, controversy or claim arising out of or relating to this Deed, including
the existence, validity, performance, interpretation, construction, breach or termination
thereof or the consequences of its nullity (each a “Dispute”), the Parties
hereby irrevocably submit to the non-exclusive jurisdiction of the Hong Kong courts. |
| 32.2 | The
Chargor irrevocably waives, to the extent permitted by applicable law, with respect to itself
and its revenues and assets (irrespective of their use or intended use), all immunity on
the grounds of sovereignty or other similar grounds from: |
| 32.2.2 | jurisdiction
of any court or arbitral tribunal; |
| 32.2.3 | relief
by way of injunction or order for specific performance or recovery of property; |
| 32.2.4 | attachment
of its assets (whether before or after judgment); and |
| 32.2.5 | execution
or enforcement of any judgment to which it or its revenues or assets might otherwise be entitled
in any proceedings in the courts or arbitral tribunal of any jurisdiction (and irrevocably
agrees, to the extent permitted by applicable law, that it will not claim any immunity in
any such proceedings). |
| 32.3 | This
Clause 32 (Jurisdiction) is for the benefit of the Investor only. As a result and
notwithstanding Clause 32.1, nothing herein shall prevent the Investor from taking proceedings
relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law
the Investor may take concurrent proceedings in any number of jurisdictions. |
| 33.1 | Without
prejudice to any other mode of service allowed under any relevant law, the Chargor irrevocably
appoints VNET Group Limited of 37/F., Tower 1 Metroplaza, Hing Fong Road, Kwai Fong, Hong
Kong as its agent under this Deed for service of process in any proceedings before the Hong
Kong courts in connection with this Deed. |
| 33.2 | If
any person appointed as process agent under this Clause is unable for any reason to so act,
the Chargor must immediately (and in any event within five (5) days of the event taking
place) appoint another agent on terms acceptable to the Investor. Failing this, the Investor
may appoint another process agent for this purpose. |
| 33.3 | The
Chargor agrees that failure by a process agent to notify it of any process will not invalidate
the relevant proceedings. |
| 33.4 | This
Clause does not affect any other method of service allowed by law. |
SCHEDULE
1
PARTICULARS OF SHARES
Legal and Beneficial owner |
Issued shares of the Company |
|
|
CHEN Sheng (陈升) |
50,000 ordinary shares |
SCHEDULE
2
FORMS
OF INSTRUMENT OF TRANSFER
in consideration of the Sum of |
|
paid to me/us by (name in full) |
|
(hereinafter called “the said Transferee”) do hereby
transfer to the said Transferee the |
share(s) numbered |
|
standing in my/our name in the Register of |
|
|
|
to hold unto the said Transferee or (his/her
Executors or Administrators/its Assigns), subject to the several conditions upon which I/we hold the same at the time of execution
hereof. And I/we the said Transferee do hereby agree to take the said shares subject to the same conditions. |
Dated day
of .
|
|
(Signature of Transferor) |
|
|
|
|
|
(Signature of Transferee) |
|
|
|
SCHEDULE
3
FORM OF
IRREVOCABLE PROXY AND POWER OF ATTORNEY
BEACON
CAPITAL GROUP INC.
(the
“Company”)
The
undersigned, CHEN SHENG ( 陈 升 ), as a shareholder
of the Company, hereby makes, constitutes and appoints the following person:
[to
be left blank]
(the
“Attorney”) as the true and lawful attorney and proxy of the undersigned with full power to appoint a nominee or nominees
to act hereunder from time to time and to vote any existing or further shares in the Company which may have been or may from time to
time be issued and/or registered in our name (the “Shares”) at all general meetings of shareholders or stockholders
of the Company with the same force and effect as the undersigned might or could do and to requisition and convene a meeting or meetings
of the shareholders of the Company for the purpose of appointing or confirming the appointment of new directors of the Company and/or
such other matters as may in the opinion of the Attorney be necessary or desirable for the purpose of implementing the Share Charge referred
to below and the undersigned hereby ratifies and confirms all that the said Attorney or its nominee or nominees shall do or cause to
be done by virtue hereof.
The
Shares have been charged to the Attorney pursuant to a share charge dated 2024
between CHEN SHENG ( 陈 升 ) as Chargor and SHINING
RICH HOLDINGS LIMITED 耀富控股有限公司
as Investor (the “Share Charge”).
Notwithstanding
anything contained in this instrument, the power of attorney and proxy shall only be exercisable upon and after the occurrence of a Triggering
Event (as defined in the Share Charge).
This
power and proxy is given to secure a proprietary interest of the donee of the power and is irrevocable and shall remain irrevocable as
long as the Share Charge is in force.
IN
WITNESS whereof this instrument has been duly executed this
day of 2024
as a deed.
(The
remainder of this page is intentionally left blank)
SIGNED
SEALED AND DELIVERED
by
CHEN
SHENG (陈升) |
)
)
)
)
)
) |
|
![](https://www.sec.gov/Archives/edgar/data/1541680/000110465924078193/tm2418852d1_ex99-29img001.jpg) |
in the
presence of: |
) |
CHEN
SHENG (陈升) |
|
|
|
|
|
|
|
|
|
Signature
of witness |
|
|
|
Name of
witness: |
|
|
|
Address
of witness: |
|
|
|
SCHEDULE
4
FORM OF
LETTER OF RESIGNATION
To: |
The Board of Directors |
|
Beacon Capital Group Inc. (the “Company”) |
Dear
Sirs,
Resignation
I
hereby tender my unconditional and irrevocable resignation as a director of the Company with effect from the date of this letter. I confirm
that:
1. | I
(in my capacity as a director of the Company) have no claims whatsoever against the Company
or any of its subsidiaries or associated companies (if any) on any account (whether for loss
of office, for accrued remuneration or for fees or otherwise howsoever); and |
2. | there
is no outstanding agreement or arrangement with the Company or any of its subsidiaries or
associated companies (if any) under which the Company or any of such subsidiaries or associated
companies has or would have any obligation to me whether now or in the future or under which
I would derive any benefit (in each case, in my capacity as a director of the Company). |
This
letter is governed by and shall be construed in accordance with the laws of Hong Kong.
[name
of relevant director] |
|
SCHEDULE
5
FORM OF
WRITTEN RESOLUTIONS BEACON
CAPITAL
GROUP INC.
(the
“Company”)
Dated:
[to be left blank]
IT
IS RESOLVED THAT:
1. | each
of the following transfers of the shares in the Company be approved and that, upon the delivery
to any director of the Company of a duly completed instrument of transfer in respect of any
of the following transfers, the name of the relevant transferee be entered forthwith in the
register of members of the Company in respect of the relevant shares so transferred and that
new share certificates in respect of such shares be issued forthwith to such transferee in
accordance with the Articles of Association of the Company: |
[to be left blank]
2. | each
of the following persons be appointed as an additional director of the Company with immediate
effect: |
[to be left blank]
3. | the
resignation of the following persons as directors of the Company be accepted with immediate
effect: |
[to be left blank]
4. | the
above changes in members and directors of the Company be entered in the Register of Directors
and Register of Members of the Company and that any director of the Company be authorised
to sign and deliver any relevant return in connection therewith. |
[all
the directors of the Company to state their names and sign]
SCHEDULE
6
FORM OF
LETTER OF UNDERTAKING AND AUTHORISATION
To: Shining
Rich Holdings Limited 耀富控股有限公司as
Investor (as defined in the Deed) (which expression shall include its successors, assigns and transferees)
Dear
Sirs,
Deed
of Share Charge dated 2024
by CHEN SHENG (陈升) in favour of SHINING RICH HOLDINGS LIMITED
耀富控股有限公司 as Investor
(as amended from time to time, the “Deed”)
Terms
and expressions defined in or construed for the purposes of the Deed shall have the same meaning herein.
I
hereby unconditionally and irrevocably:
1 | undertake
to procure, to the extent of my powers as a director of Beacon Capital Group Inc. (the “Company”),
that any or all of the shares in the Company which are charged to you pursuant to the Deed
shall upon your request be promptly registered in the name of yourself or (at your request)
any person(s) whom you may nominate; |
2 | authorise
each of you and any other person(s) authorised by you severally to complete, date and
put into effect: |
| (a) | the
attached letter of resignation signed by me; |
| (b) | the
attached written resolutions of the board of directors of the Company signed by me; and |
| (c) | any
other document signed by me and delivered pursuant to Clause 4.2 (Delivery of Documents
of Title) of the Deed, |
in each case at any time after
the security constituted by the Deed shall have become enforceable in accordance with its terms.
This
letter is governed by and shall be construed in accordance with the laws of Hong Kong.
IN
WITNESS WHEREOF this deed has been executed the day and year above written.
SIGNED
SEALED AND DELIVERED
by
[name
of relevant director]
In
the presence of |
)
)
)
) |
|
![](https://www.sec.gov/Archives/edgar/data/1541680/000110465924078193/tm2418852d1_ex99-29img001.jpg) |
|
|
|
|
Signature
of witness: |
|
|
Name of
witness: |
|
|
SCHEDULE
7
FORM OF
LETTER TO REGISTERED AGENT FROM THE COMPANY
[Registered
Agent]
[Address]
British
Virgin Islands
[Date]
Dear
Sirs
Beacon
Capital Group Inc. (the “Company”)
We
hereby notify you that Sheng Chen (the “Chargor”) has entered into a charge over shares in favour of Shining Rich
Holdings Limited 耀富控股有限公司(the
“Investor”) in respect of all the shares held by the Chargor in the Company (the “Share Charge”).
Under the terms of the Share Charge, the Investor is permitted, following the occurrence of an Event of Default (as defined in the Share
Charge) (an “Enforcement Event”), to, inter alia, perfect the transfer of the shares held by the Chargor in the Company
to the Investor.
From
the date of an Enforcement Event as may be notified to you by the Investor, we irrevocably instruct and authorise you that your client
of record is ,
and you should release all such information, do all such things and perform all such acts as may be requested or required by and/or
their duly authorised representatives regarding information held by you of the Company including, without limitation, providing access
to all Company documents and acting on the instructions of the Investor to update the register of members of the Company to reflect the
transfer of shares by the Chargor to the Investor or one of its nominees.
We
hereby agree and instruct you that any written confirmation by the Investor to you that an Enforcement Event has occurred shall be conclusive
and binding.
As
of the date of this letter you are also irrevocably instructed and authorised to annotate the Register of Members of the Company with:
“All
the ordinary share registered in the name of Sheng Chen (陈升)
are charged in favour of Shining Rich Holdings Limited 耀富控股有限公司
pursuant to a share charge dated [enter date], as amended from time to time. The date on which this annotation was entered
in the Register of Members is [enter date].”
Yours
faithfully,
For
and on behalf of
Beacon
Capital Group Inc.
Acknowledged and agreed by: |
|
|
|
|
|
Authorised Signatory |
|
for and on behalf of |
|
[Registered Agent of the Company] |
|
SCHEDULE
8
FORM OF
DEED OF UNDERTAKING AND CONFIRMATION FROM THE COMPANY
[Date]
Shining
Rich Holdings Limited
耀富控股有限公司
(the
“Investor”)
Dear Sirs
Beacon
Capital Group Inc. (the “Company”)
We
refer to the charge over shares in respect of all the shares held by the Chargor in the Company (the “Share Charge”)
between Sheng Chen as chargor (the “Chargor”) and the Investor whereby, inter alia, the Chargor granted a charge over
the Shares and all Related Rights in favour of the Investor.
Capitalised
words and expressions used in this deed which are not expressly defined herein have the same meanings ascribed to them in the Share Charge.
This
deed of undertaking and confirmation is given pursuant to the Share Charge.
1. | For
valuable consideration receipt of which is hereby acknowledged, the Company hereby irrevocably
and unconditionally undertakes while an Event of Default has occurred and is continuing to
register in the Register of Members any and all share transfers to the Investor or its nominee(s) in
respect of the Shares submitted to the Company by the Investor. |
2. | The
Company hereby confirms that it has instructed its registered agent to make an annotation
of the existence of the Share Charge and the security interests created thereby in the Register
of Members pursuant to the Share Charge. |
3. | The
Company hereby confirms that the Register of Members provided to the Investor pursuant to
the Share Charge is a certified copy of the original Register of Members and it will not
redesignate or otherwise seek to recreate the Register of Members. |
THIS
DEED POLL has been executed and delivered as a Deed Poll on the day and year first above written.
IN
WITNESS WHEREOF this deed has been executed the day and year above written.
EXECUTED
AND DELIVERED
AS
A DEED
by
for
and on behalf of
BEACON
CAPITAL GROUP INC. |
)
)
)
)
)
) |
Duly
Authorised Signatory
Name:
Title: |
![](https://www.sec.gov/Archives/edgar/data/1541680/000110465924078193/tm2418852d1_ex99-29img001.jpg) |
EXECUTION
PAGE
The
parties hereto have executed and delivered this Deed as a deed the day and year first above written.
THE
CHARGOR
SIGNED
SEALED AND DELIVERED
AS
A DEED by
CHEN
SHENG (陈升) |
)
)
)
)
)
) |
/s/ CHEN
SHENG |
![](https://www.sec.gov/Archives/edgar/data/1541680/000110465924078193/tm2418852d1_ex99-29img001.jpg) |
|
) |
CHEN
SHENG (陈升) |
|
[Execution
Page – Share Charge (Guarantor – BVI-1) – Chargor]
THE
INVESTOR
EXECUTED
AND DELIVERED
AS
A DEED by Wang Peng
,
its authorised signatory for and on behalf of
SHINING
RICH HOLDINGS LIMITED
耀富控股有限公司 |
)
)
)
)
)
)
)
)
)
) |
/s/ Wang
Peng
Name: Wang Peng
Title: Authorised Signatory |
![](https://www.sec.gov/Archives/edgar/data/1541680/000110465924078193/tm2418852d1_ex99-29img001.jpg) |
[Execution
Page – Share Charge (Guarantor – BVI-1) – Investor]
Exhibit 99.30
EXECUTION VERSION
Dated 5th day of July 2024
CHEN SHENG
(陈升)
as Chargor
IN FAVOUR OF
SHINING RICH HOLDINGS LIMITED
耀富控股有限公司
as Investor
CHARGE OVER SHARES
in relation to shares in
FAST HORSE TECHNOLOGY LIMITED
THIS
DEED is made on the 5th day of July 2024
BY:
CHEN SHENG ( 陈
升 ), a citizen of the PRC with passport number [*****] and PRC Identity Card number [*****] and domiciled
in the PRC (the “Chargor”)
IN FAVOUR OF:
SHINING
RICH HOLDINGS LIMITED 耀富控股有限公司,
a BVI business company incorporated under the laws of the British Virgin Islands with limited liability with company number 1972405
and with its registered office at Portcullis Chambers, 4th Floor Ellen Skelton Building, 3076 Sir Francis Drake Highway, Road Town,
Tortola, British Virgin Islands VG1110 (the “Investor”).
(The parties referred above shall collectively
be referred to as the “Parties” and each a “Party”.)
NOW THIS DEED WITNESSES as follows:
| 1. | DEFINITIONS AND INTERPRETATION |
Unless otherwise defined in this Deed
or unless the context otherwise requires, terms and expressions defined in or construed for the purposes of the Subscription Agreement
as amended from time to time shall bear the same meanings when used herein. In addition:
“Company” means
Fast Horse Technology Limited, a BVI business company incorporated under the laws of the British Virgin Islands with limited liability
with company number 368150 and with its registered office at Vistra Corporate Services Centre, Wickhams Cay II, Road Town, Tortola, VG1110,
British Virgin Islands.
“BVI Act” means
the British Virgin Islands Business Companies Act 2004, as amended and/or supplemented from time to time.
“Charged Property”
means: (a) the Share Collateral (and any part of them); and (b) the Related Rights in relation to the Share Collateral of the
Chargor which from time to time are the subject of the security created or expressed to be created in favour of the Investor by or pursuant
to this Deed.
“Collateral Rights”
means all rights, powers and remedies of the Investor provided by or pursuant to this Deed or by law.
“Delegate” means
any delegate, agent, attorney or co-trustee appointed by the Investor or a Receiver.
“Event of Default”
has the meaning given to the term “Event of Default” under the Subscription Agreement.
“Guarantor” means
the Chargor.
“Receiver” means
a receiver or receiver and manager or an administrative receiver of the whole or any part of the Charged Property and that term will include
any appointee under a joint and/or several appointment.
“Related Rights”
means, in relation to any asset:
| (a) | the proceeds of sale of any part of that asset; |
| (b) | all rights under any licence, agreement for sale, lease or other disposal in respect of that asset; |
| (c) | all rights, powers, benefits, claims, contracts, warranties, remedies, security, guarantees, indemnities
and/or covenants for title in respect of that asset; |
| (d) | any moneys and proceeds paid or payable in respect of that asset; |
| (e) | (in the case where such asset comprises any share, equity interest or other security) all dividends,
distributions, interest and monies payable in respect thereof and any rights, assets, shares and/or securities deriving therefrom or accruing
thereto whether by way of redemption, bonus, preference, option, substitution, conversion, compensation or otherwise; and/or |
| (f) | (in the case where such asset comprises any share, equity interest or other security) any rights against
any clearing system in which such asset is held, |
(in each case) from time to time.
“Secured Obligations”
means all obligations at any time due, owing or incurred by any of the Obligors or any of their respective Affiliates, to the Investor
under the Transaction Documents, whether present or future, actual or contingent (and whether incurred solely or jointly and whether as
principal or surety or in some other capacity).
“Security Interest”
means:
| (a) | an interest or power reserved in or created or otherwise arising in or over an interest in any asset
whether under a bill of sale, mortgage, charge, lien, pledge, other security interest or preferential arrangement (including retention
of title), trust or power or otherwise by way of, or having similar commercial effect to, security for the payment of a debt, any other
monetary obligation or the performance of any other obligation; or |
| (b) | any agreement to grant or create anything referred to in either of paragraph (a) of this definition
and any other thing which gives a creditor priority to any other creditor with respect to any asset or an interest in any asset. |
“Security Period”
means the period from and including the date of execution of this Deed to and including the date of discharge of the security created
by this Deed in accordance with Clause 18 (Release of Security).
“Shares” means all
present and future issued share(s) of the Company, including the shares issued as at the date of this Deed specified in Schedule
1 (Particulars of Shares).
“Share Collateral”
means the Shares beneficially owned by the Chargor and/or any substitute or additional Shares thereof from time to time, while any Secured
Obligations are outstanding.
“Subscription
Agreement” means the subscription agreement dated ______________2024 entered into between (among others) the Issuer as issuer, the
Guarantor as guarantor and the Investor as investor, pursuant to which, the Issuer agrees to issue to the Investor, and the Investor
agrees to subscribe from the Issuer, the Note (as supplemented, modified or amended from time to time).
“Triggering Event”
means the delivery by the Investor of a written notice in accordance with Clause 28 (Notices) to the Chargor that an Event of Default
has occurred.
In this Deed:
| 1.2.1 | the rules of construction set out in clause 1.2 of the Subscription Agreement shall apply to this Deed mutatis mutandis; and |
| 1.2.2 | any reference to the Chargor and the Investor shall be construed so as to include its or their (and any subsequent) successors and
any permitted assigns and transferees in accordance with their respective interests. |
The Chargor hereby covenants with the
Investor to discharge each of the Secured Obligations on their due date in accordance with their respective terms.
| (a) | The Chargor hereby charges as legal and beneficial owner in favour of the Investor, as security for the payment and discharge of the
Secured Obligations, by way of first fixed charge, all the Chargor’s right, title and interest from time to time in and to the Share
Collateral and all its other present and future Related Rights in relation thereto. |
| (b) | The Chargor hereby authorises the Investor to arrange at any time following the occurrence of an Event of Default which is continuing
for the Charged Property or any part thereof to be registered in the name of the Investor (or its nominee) thereupon to be held, as so
registered, subject to the terms of this Deed and at the request of the Investor, the Chargor shall without delay procure that the foregoing
shall be done. |
4.1 | The Chargor shall procure that the following annotation be inserted into the register of members (the “Register of Members”)
of the Company maintained by it in accordance with the BVI Act: |
“All the ordinary share registered
in the name of Sheng Chen (陈升) are charged in favour
of Shining Rich Holdings Limited 耀富控股有限公司
pursuant to a share charge dated [Date], as amended from time to time. The date on which this annotation was entered in the
Register of Members is [Date].”
Immediately upon entry of such details
has been made, and in any event within five (5) Business Days after the date of this Deed, provide a certified true copy of the annotated
Register of Members to the Investor.
| 4.2 | Delivery of Documents of Title |
The Chargor shall:
| 4.2.1 | on the date of this Deed, deposit with the Investor (or procure the deposit with the Investor of) the following in respect of any
Share Collateral existing as at the date of this Deed: |
| (a) | all original certificates or other documents of title to such Share Collateral (including a certified copy of the Register of Members
to be certified by director, company secretary or legal counsel of the Company); |
| (b) | undated share transfer forms in respect of such Share Collateral, executed in blank by or on behalf of the Chargor and other documents
which may be requested by the Investor from time to time in order to enable the Investor or its nominees to be registered as the owner
or otherwise obtain legal title to any of the Charged Property in the form set out in Schedule 2 (Forms of Instrument of Transfer); |
| (c) | undated irrevocable proxy and power of attorney in respect of such Shares, executed in blank by or on behalf of the Chargor in the
form set out in Schedule 3 (Form of Irrevocable Proxy and Power of Attorney); |
| (d) | an undated letter of resignation executed by each director of the Company in substantially the form set out in Schedule 4 (Form of
Letter of Resignation); |
| (e) | undated written resolutions of the board of directors of the Company executed by all of the directors of the Company in substantially
the form set out in Schedule 5 (Form of Written Resolutions); |
| (f) | a dated letter of undertaking and authorisation executed by each director of the Company in substantially the form set out in Schedule
6 (Form of Letter of Undertaking and Authorisation); |
| (g) | a dated letter of instruction executed by or on behalf of the Company to its registered agent in respect of the Register of Members
of the Company substantially in the form set
out in Schedule 7 (Form of Letter to Registered Agent from the Company) which shall be delivered by, or on behalf of, the
Company to the registered agent and acknowledged by the registered agent promptly following execution of this Deed and in any event no
more than five (5) Business Days after the date of this Deed; and |
| (h) | a dated deed of undertaking and confirmation executed by or on behalf of the Company substantially in the form set out in Schedule
8 (Form of Deed of Undertaking and Confirmation from the Company). |
| 4.2.2 | promptly and, in any event, within five (5) Business Days of any acquisition of any Shares and/or upon any Shares becoming subject
to security hereunder and/or the accrual, issue or coming into existence of any stocks, shares, warrants or other securities in respect
of or derived from any Shares, notify the Investor of that occurrence and procure the delivery to the Investor of: |
| (a) | a certified true copy of the updated register of members of the Company, together with all original certificates and other documents
of title representing such items; and |
| (b) | undated share transfer forms or, as the case may be, other appropriate instruments of transfer in respect of such items executed in
blank by or on behalf of the Chargor, substantially in the form set out in Schedule 2 (Form of Instrument Transfer) (if applicable)
or in such other form as the Investor shall require, |
| | |
| (except already delivered pursuant to this Clause 4.2). |
| 4.2.3 | promptly upon any change in any director of the Company after the date of this Deed, procure the delivery to the Investor of: |
| (a) | (in the case of a new director) an undated letter of resignation executed by such director of the Company in substantially the form
set out in Schedule 4 (Form of Letter of Resignation); |
| (b) | undated written resolutions of the board of directors of the Company executed by all of the directors of the Company in substantially
the form set out in Schedule 5 (Form of Written Resolutions); |
| (c) | (in the case of a new director) an undated undertaking and authorisation executed by such director of the Company in substantially
the form set out in Schedule 6 (Form of Letter of Undertaking and Authorisation); |
| (d) | (in the case of a director who was the signatory of the letter of instruction referred to in Clause 4.2.1(g) on behalf of
the Company) a dated letter of instruction executed by a remaining director (or, where a new director is simultaneously appointed,
the new director) on behalf of the Company to its registered agent in respect of the Register of Members of the Company
substantially in the form set out in Schedule 7 (Form of Letter to Registered Agent from the Company) which shall be
delivered by, or on behalf of, the Company to the registered agent and acknowledged
by the registered agent; and |
| (e) | (in the case of a director who was the signatory of the deed of undertaking and confirmation referred to in Clause 4.2.1(h) on
behalf of the Company) a dated deed of undertaking and confirmation executed by a remaining director (or, where a new director is simultaneously
appointed, the new director) on behalf of the Company substantially in the form set out in Schedule 8 (Form of Deed of Undertaking
and Confirmation from the Company). |
| 4.2.4 | promptly upon any change in the registered agent of the Company after the date of this Deed, procure the delivery to the Investor
of a dated letter of instruction executed by or on behalf of the Company to its new registered agent in respect of the Register of Members
of the Company substantially in the form set out in Schedule 7 (Form of Letter to Registered Agent from the Company) which
shall be delivered by the Company to the new registered agent and acknowledged by the new registered agent promptly following delivery
of such letter of instruction. |
| 5.1 | Further Assurance: General |
The Chargor shall promptly at its own
cost do all such acts and/or execute all such documents (including without limitation assignments, transfers, mortgages, charges, notices
and instructions) as the Investor may reasonably specify (and in such form as the Investor may reasonably require the Chargor to act/execute
in favour of the Investor or its nominee(s)):
| 5.1.1 | to perfect the security created or intended to be created in respect of the Charged Property (which may include, without limitation,
the execution by the Chargor of a mortgage, charge or assignment over all or any of the assets constituting, or intended to constitute,
any part of the Charged Property) or for the exercise of the Collateral Rights; and/or |
| 5.1.2 | after the occurrence of a Triggering Event, to deliver or procure that there shall be delivered to the Investor all other documents
the Investor considers necessary or desirable to enable the Investor to register such Charged Property in its name or in the name of its
nominees or any delegate and to facilitate the realisation of the Charged Property. |
The Chargor shall from time to time
take all such action (whether or not requested to do so by the Investor) as is or shall be reasonably available to it (including without
limitation obtaining and/or effecting all approvals) as may be necessary for the purpose of the creation, perfection, protection or maintenance
of any security conferred or intended to be conferred on the Investor by or pursuant to this Deed and/or to exercise its rights and to
perform the obligations expressed on its part under this Deed and/or to make this Deed admissible in evidence in any court having jurisdiction.
The Chargor shall promptly deliver
to the Investor all information that is available to it and that is required in order for the Investor to comply with any applicable laws
or regulations in respect of any Charged Property, or any similar provision in any articles of association or constitutional documents
relating to any Charged Property.
| 5.4 | Implied Covenants for Title |
The obligations of the Chargor under
this Deed shall be in addition to any covenants for title deemed to be included in this Deed under applicable law.
| 6. | NEGATIVE PLEDGE AND OTHER UNDERTAKINGS |
The Chargor undertakes that it shall
not, at any time during the subsistence of this Deed, create or permit to subsist any Security over all or any part of the Charged Property
unless expressly permitted under and in accordance with any of the Transaction Documents.
| 6.2 | No Disposal of Interests |
The Chargor undertakes that, during
the subsistence of this Deed, it shall not, and shall not agree to, except with the prior written consent of the Investor:
| 6.2.1 | sell, assign, transfer or otherwise dispose of any Charged Property; |
| 6.2.2 | procure or permit the Company to issue any new shares; |
| 6.2.3 | appoint any new director, or otherwise effect any change of director, of the Company; or |
| 6.2.4 | otherwise procure or permit a change of control over the Company or any Share Collateral. |
| 7. | OPERATIONS BEFORE AND AFTER TRIGGERING EVENT |
| 7.1.1 | The Chargor shall, at all times prior to the giving of a notice in writing by the Investor to the Chargor (a “Triggering
Event”) that an Event of Default has occurred, ensure that all dividends paid or made in respect of any Charged Property are
applied in accordance with the terms of the Subscription Agreement. |
| 7.1.2 | After the occurrence of a Triggering Event, the Chargor shall promptly pay over and deliver to the Investor for application in accordance
with this Deed (and the Investor may apply in accordance with this Deed) any and all dividends, distributions, interest and/or other monies
received and/or recovered by it in respect of all or any part of the Charged Property. |
| 7.1.3 | Any and all dividends, distributions, interest and/or other monies received, recovered or paid/delivered to the order of the Chargor
(other than in cash) in respect of any or all of the Charged Property shall be held by the Chargor subject to the security constituted
by this Deed, and the Chargor shall promptly deliver such dividends, distributions, interest and/or other monies to the Investor for application
in accordance with this Deed. |
| 7.2 | Operation: Before Triggering Event |
Prior to the occurrence of a Triggering
Event, the Chargor shall be entitled to exercise all voting rights in relation to any or all of the Share Collateral and (if applicable)
additional shares provided that the Chargor shall not exercise such voting rights in any manner that could give rise to, or otherwise
permit or agree to, any (a) variation of the rights attaching to or conferred by any of the Share Collateral and (if applicable)
additional shares or (b) any liability on the part of the Investor.
| 7.3 | Operation: After Triggering Event |
The Investor may, upon and/or after
the occurrence of a Triggering Event, at its discretion (in the name of the Chargor or otherwise and without any further consent or authority
from the Chargor):
| 7.3.1 | exercise (or refrain from exercising) any voting rights in respect of the Charged Property; |
| 7.3.2 | apply all dividends, distributions, interest and other monies arising from all or any of the Charged Property in accordance with Clause
12 (Application of Monies); |
| 7.3.3 | have the right to complete, date and put into effect any documents referred to in Clause 4.2 (Delivery of Documents of Title); |
| 7.3.4 | transfer all or any of the Charged Property into the name of such nominee(s) of the Investor as it shall think fit; and |
| 7.3.5 | exercise (or refrain from exercising) the powers and rights conferred on or exercisable by the legal or beneficial owner of the Charged
Property, including without limitation the right, in relation to any company, corporation or entity whose shares, equity interests or
other securities are included in the Charged Property or any part thereof, to concur or participate in: |
| (a) | the reconstruction, amalgamation, sale or other disposal of such company, corporation or entity or any of its assets or undertaking
(including without limitation the exchange, conversion or reissue of any shares, equity interests or securities as a consequence thereof); |
| (b) | the release, modification or variation of any rights or liabilities attaching to such shares, equity interests or securities; and |
| (c) | the exercise, renunciation or assignment
of any right to subscribe for any shares, equity interests or securities, |
| | |
| in each case in such manner and on
such terms as the Investor may think fit, and the proceeds of any such action shall form part of the Charged Property and may be applied
by the Investor in accordance with Clause 12 (Application of Monies). |
The Chargor shall pay when due all
calls or other payments which may be or become due in respect of any of the Charged Property, and in any case of default by the Chargor
in such payment, the Investor may, if it thinks fit, make such payment on behalf of the Chargor in which case any sums paid by the Investor
shall be reimbursed by the Chargor to the Investor on demand and shall carry interest from the date of payment by the Investor until reimbursed
in full at the rate and in accordance with clause 8.4 (Default Interest) of the Note Instrument as if it were an Unpaid Sum thereunder.
| 7.5.1 | The Chargor shall not exercise any of its rights and powers in relation to any of the Charged Property in any manner which, in the
opinion of the Investor, would prejudice the value of, or the ability of the Investor to realise, the security created by this Deed. |
| 7.5.2 | The Investor shall not have any duty to ensure that any dividends, interest or other monies and assets receivable in respect of the
Charged Property are duly and punctually paid, received or collected as and when the same become due and payable or to ensure that the
correct amounts (if any) are paid or received on or in respect of the Charged Property or to ensure the taking up of any (or any offer
of any) stocks, shares, rights, monies or other property paid, distributed, accruing or offered at any time by way of redemption bonus,
rights, preference, or otherwise on or in respect of, any of the Charged Property. |
| 7.5.3 | The Chargor shall not at any time during the Security Period exercise the right to nominate any person other than the Investor or
the nominee(s) of the Investor to enjoy or exercise any right relating to any of the Charged Property. |
| 8. | ENFORCEMENT OF SECURITY |
Upon and after the occurrence of a
Triggering Event or if the Chargor requests the Investor to exercise any of its powers under this Deed, the security created by or pursuant
to this Deed is immediately enforceable and the Investor may, with prior notice to the Chargor or prior authorisation from any court,
in its absolute discretion:
| 8.1.1 | enforce all or any part of such security (at the times, in the manner and on the terms it thinks fit) and take possession of and hold
or dispose of all or any part of the Charged Property; and |
| 8.1.2 | whether or not it has appointed a Receiver, exercise all or any of the powers, authorities and discretions conferred by this Deed
on any Receiver or otherwise conferred by law on mortgagees and/or Receivers. |
| 8.2 | No Liability as Mortgagee in Possession |
Neither the Investor nor any Receiver
shall be liable to account as a mortgagee in possession in respect of all or any part of the Charged Property or be liable by reason of
taking any action permitted by this Deed or for any loss upon realisation or for any neglect, default or omission in connection with the
Charged Property to which a mortgagee or a mortgagee in possession might otherwise be liable, unless in each case, directly caused by
its wilful misconduct.
The power of sale or other disposal
conferred on the Investor and on any Receiver by this Deed shall arise (and the Secured Obligations shall be deemed due and payable for
that purpose) on execution of this Deed and shall be exercisable in accordance with Clause 8.1 (Enforcement) and any applicable
law or regulation.
Any restrictions imposed by law on
the power of sale or on the consolidation of security (including without limitation any restriction under paragraph 11 of the Fourth Schedule
to the Conveyancing and Property Ordinance (Chapter 219 of the Laws of Hong Kong) shall be excluded to the fullest extent permitted by
law.
| 10. | APPOINTMENT OF RECEIVER |
| 10.1 | Appointment and Removal |
Upon and after the occurrence of a
Triggering Event or if requested to do so by the Chargor, the Investor shall have the right by deed or otherwise (acting through an authorised
officer of the Investor), without prior notice to the Chargor:
| 10.1.1 | appoint one or more persons to be a Receiver over the whole or any part of the Charged Property; |
| 10.1.2 | appoint two or more Receivers of separate parts of the Charged Property; |
| 10.1.3 | remove (so far as it is lawfully able) any Receiver so appointed; and/or |
| 10.1.4 | appoint another person(s) as an additional or replacement Receiver(s). |
| 10.2 | Capacity of Receivers |
Each person appointed to be a Receiver
pursuant to Clause 10.1 (Appointment and Removal) shall be:
| 10.2.1 | entitled to act individually or together with any other person appointed or substituted as Receiver; |
| 10.2.2 | for all purposes deemed to be the agent of the Chargor which shall be solely responsible for his acts, defaults and liabilities and
for the payment of his remuneration and no Receiver shall at any time act as agent for the Investor; and |
| 10.2.3 | entitled to remuneration for his services at a rate to be fixed by the Investor from time to time. |
If at any time there is more than one
Receiver, each Receiver may separately exercise all of the powers conferred by this Deed and to the exclusion of any other Receiver (unless
the document appointing such Receiver states otherwise).
| 10.4 | Statutory Powers of Appointment |
The powers of appointment of a Receiver
herein contained shall be in addition to all statutory and other powers of appointment of the Investor under applicable law and such powers
shall remain exercisable from time to time by the Investor in respect of all or any part of the Charged Property.
Every Receiver shall (subject to any
restrictions in the instrument appointing him but notwithstanding any winding-up or dissolution of the Chargor) have and be entitled to
exercise, in relation to the Charged Property (and any assets of the Chargor which, when got in, would be Charged Property) or that part
thereof in respect of which he was appointed, and as varied and extended by the provisions of this Deed (in the name of or on behalf of
the Chargor or in his own name and, in each case, at the cost of the Chargor):
| 11.1.1 | all the powers conferred by the Conveyancing and Property Ordinance (Chapter 219 of the Laws of Hong Kong) on mortgagors and on mortgagees
in possession and on receivers appointed under that Ordinance (as if the Charged Property constituted property that is subject to that
Ordinance and as if such Receiver were appointed under that Ordinance), free from any limitation under paragraph 11 of the Fourth Schedule
to that Ordinance; |
| 11.1.2 | all rights, powers and discretions conferred by this Deed (either expressly or impliedly) or by law on the Chargor; |
| 11.1.3 | all the powers and rights of an absolute owner and power to do or omit to do anything which the Chargor itself could do or omit to
do; and |
| 11.1.4 | the power to do all things (including without limitation bringing or defending proceedings in the name or on behalf of the Chargor)
which seem to that Receiver to be incidental or conducive to (a) any of the functions, powers, authorities or discretions conferred
on or vested in him or (b) the exercise of any Collateral Rights (including without limitation realisation of all or any part of
the Charged Property) or (c) bringing to his hands any assets of the Chargor forming, or which, when got in, would be part of the
Charged Property. |
| 11.2 | Additional Powers of Receiver |
In addition to and without prejudice
to the generality of the foregoing, every Receiver shall (subject to any limitations or restrictions expressed in the instrument appointing
him but notwithstanding any winding-up or dissolution of the Chargor) have the following powers in relation to the Charged Property (and
any assets of the Chargor which, when got in, would be part of the Charged Property) in respect of which he was appointed (and every reference
in this Clause 11.2 to the “Charged Property” shall be read as a reference to that part of the Charged Property in
respect of which such Receiver was appointed):
power to enter upon, take immediate
possession of, collect and get in the Charged Property including without limitation dividends and other income whether accrued before
or after the date of his appointment;
| 11.2.2 | Proceedings and Claims |
power to bring, prosecute, enforce,
defend and abandon applications, claims, disputes, actions, suits and proceedings in connection with all or any part of the Charged Property
or this Deed in the name of the Chargor or in his own name and to submit to arbitration, negotiate, compromise and settle any such applications,
claims, disputes, actions, suits or proceedings;
power to carry on and manage, or concur
in the carrying on and management of or to appoint a manager of, the whole or any part of the Charged Property or any business relating
thereto in such manner as he shall in his absolute discretion think fit;
power to appoint, hire and employ officers,
employees, contractors, agents, advisors and others for any of the purposes of this Deed and/or to guard or protect the Charged Property
upon terms as to remuneration or otherwise as he may think fit and to discharge any such persons and any such persons appointed, hired
or employed by the Chargor;
power to give a valid receipt for any
monies and execute any assurance or thing which may be proper or desirable for realising any Charged Property;
| 11.2.6 | Deal with Charged Property |
power, in relation to the Charged
Property and each and every part thereof, to sell, transfer, convey, dispose of or concur in any of the foregoing by the Chargor or
any other receiver or manager of the Chargor (including without limitation to or in relation to the Investor) in such manner and
generally on such terms as he thinks fit , and the consideration for any such transaction may consist of cash, debentures or other
obligations, shares, stock or other valuable consideration and any such consideration may be payable in a lump sum or by instalments
spread over any period which the Receiver thinks fit;
power to purchase, lease, hire or otherwise
acquire any assets or rights of any description which he shall in his absolute discretion consider necessary or desirable for the carrying
on, improvement or realisation of the whole or any part of the Charged Property or otherwise for the benefit of the whole or any part
of the Charged Property;
power to promote, procure the formation
or otherwise acquire the share capital of, any body corporate with a view to such body corporate becoming a subsidiary of the Chargor
or otherwise and purchasing, leasing or otherwise acquiring an interest in the whole or any part of the Charged Property or carrying on
any business in succession to the Chargor or any subsidiary of the Chargor;
power to delegate
his powers in accordance with this Deed;
power to effect, maintain or renew
indemnity and other insurances and to obtain bonds and performance guarantees and do any other act which the Chargor might do in the ordinary
conduct of its business to protect or improve any Charged Property;
power to raise or borrow money from
the Investor or any other person to rank either in priority to the security constituted by this Deed or any part of it or otherwise and
with or without a mortgage or charge on the Charged Property or any part of it on such terms as he shall in his absolute discretion think
fit (and no person lending such money shall be concerned to see or enquire as to the propriety or purpose of the exercise of such power
or the application of money so raised or borrowed);
| 11.2.12 | Redemption of Security |
power to redeem, discharge or compromise
any security whether or not having priority to the security constituted by this Deed or any part of it;
| 11.2.13 | Covenants, Guarantees and Indemnities |
power to enter into bonds,
covenants, guarantees, commitments, indemnities and other obligations or liabilities as he shall think fit, to make all payments
needed to effect, maintain or satisfy such obligations or liabilities and to use the company seal of the Chargor;
power to appoint an attorney or solicitor
or accountant or other professionally qualified person to assist him in the performance of his functions;
power to make any payment which is
necessary or incidental to the performance of his functions; and
| 11.2.16 | Exercise of Powers in Chargor’s Name |
power to exercise any or all of the
above powers on behalf of and in the name of the Chargor (notwithstanding any winding-up or dissolution of the Chargor) or on his own
behalf.
In making any sale or other disposal
of all or any part of the Charged Property or any acquisition in the exercise of their respective powers (including without limitation
a disposal by a Receiver to any subsidiary of the Chargor or other body corporate as is referred to in Clause 11.2.8 (New Subsidiary)),
a Receiver or the Investor may accept or dispose of as, and by way of consideration for, such sale or other disposal or acquisition, cash,
shares, loan capital or other obligations, including without limitation consideration fluctuating according to or dependent upon profit
or turnover and consideration the amount whereof is to be determined by a third party. Any such consideration may, if thought expedient
by the Receiver or the Investor, be nil or may be payable or receivable in a lump sum or by instalments. Any contract for any such sale,
disposal or acquisition by the Receiver or the Investor may contain conditions excluding or restricting the personal liability of the
Receiver or the Investor.
| 11.4 | Relationship with Investor |
To the fullest extent allowed by law,
any right, power or discretion conferred by this Deed (either expressly or impliedly) or by law on a Receiver may after the Security conferred
or intended to be conferred on the Investor by or pursuant to this Deed becomes enforceable be exercised by the Investor in relation to
any Charged Property without first appointing a Receiver and notwithstanding the appointment of a Receiver.
Save as otherwise expressly provided
in this Deed, all moneys and/or non-cash recoveries and/or proceeds received or recovered by the Investor or any Receiver pursuant to
this Deed or the powers conferred by it shall (subject to the claims of any person having prior rights thereto and subject to Clause 12.2
(Suspense Account)) be applied:
| 12.1.1 | first, in the payment of the costs, charges and expenses incurred and payments made by any Receiver, the payment of his remuneration
and the discharge of any liabilities incurred by such Receiver in, or incidental to, the exercise of any of his powers; |
| 12.1.2 | second, be applied by the Investor as the Investor shall think fit in discharge of the Secured Obligations; and |
| 12.1.3 | third, following such payments, the remaining balance (if any) shall be paid to the Chargor for its rights and interests or such other
person as may be entitled thereto. |
This Clause does not prejudice the
right of the Investor to recover from the Chargor any shortfall between (i) any Unpaid Sum; and (ii) the moneys and/or non-cash
recoveries and/or proceeds received or recovered under this Clause.
All monies received, recovered or realised
under this Deed by the Investor or any Receiver or the powers conferred by it (including the proceeds of any conversion of currency) may
in its discretion be credited to and held in any suspense or impersonal account pending their application from time to time in or towards
the discharge of any of the Secured Obligations in accordance with Clause 12.1 (Order of Application).
| 12.3 | Application by Chargor |
Any application under this Clause 12
shall override any application by the Chargor.
| 13. | RECEIPT AND PROTECTION OF PURCHASERS |
| 13.1 | Receipt and Consideration |
The receipt of the Investor or any
Receiver shall be conclusive discharge to a purchaser of any part of the Charged Property from the Investor or such Receiver and in making
any sale or disposal of any part of the Charged Property or making any acquisition, the Investor or any Receiver may do so for such consideration,
in such manner and on such terms as it thinks fit.
| 13.2 | Protection of Purchasers |
No purchaser or other person dealing
with the Investor or any Receiver shall be bound to inquire whether the right of the Investor or such Receiver to exercise any of its
powers has arisen or become exercisable or be concerned with any propriety or regularity on the part of the Investor or such Receiver
in such dealings. The protection given to purchasers from a mortgagee in sections 52 and 55 of the Conveyancing and Property Ordinance
(Chapter 219 of the Laws of Hong Kong) shall apply mutatis mutandis to purchaser(s) and other person(s) dealing with
the Investor or any Receiver.
| 14.1 | Appointment and Powers |
The Chargor by way of security irrevocably
(within the meaning of Section 4 of the Powers of Attorney Ordinance (Chapter 31 of the Laws of Hong Kong) appoints the Investor
and any Receiver severally to be its attorney and in its name, on its behalf to execute, deliver and perfect all documents and do all
things which the Investor or such Receiver may consider to be necessary for:
| 14.1.1 | carrying out any obligation imposed on the Chargor by this Deed or any other agreement binding on the Chargor to which the Investor
is party (including without limitation the execution and delivery of any deeds, charges, assignments or other security and any transfers
of the Charged Property or any part thereof); and |
| 14.1.2 | enabling the Investor and any Receiver to exercise, or delegate the exercise of, any of the rights, powers and authorities conferred
on them by or pursuant to this Deed or by law (including, without limitation, upon or after the occurrence of a Triggering Event, the
exercise of any right of a legal or beneficial owner of the Charged Property or any part thereof). |
The Chargor shall ratify and confirm
all things done and all documents executed by any attorney in the lawful exercise or purported exercise of all or any of its powers pursuant
to this Deed.
The Chargor represents and warrants
to the Investor that:
| 15.1.1 | the Chargor is aged 18 or above and of full mental capacity; |
| 15.1.2 | subject to Legal Reservations, each of the obligations expressed to be assumed by him in this Deed are legal, valid, binding and enforceable
obligation, and this Deed creates the security interests which it purports to create and such security interests are valid and effective; |
| 15.1.3 | the entry into and performance by him of, and the transactions contemplated by, this Deed do not and will not: |
| (a) | conflict with any law or regulation applicable to him; |
| (b) | conflict with any agreement or instrument binding upon him or any of his assets; or |
| (c) | result in the existence of or oblige him to create any security over all or any of his assets (other than the security constituted
pursuant to this Deed); |
| 15.1.4 | he has the power to enter into, perform and deliver, and has taken all necessary actions to authorise his entry into, performance
and delivery of, this Deed; |
| 15.1.5 | no limit on his powers will be exceeded as a result of the grant of security contemplated by this Deed; |
| 15.1.6 | all Authorisation required or desirable: |
| (a) | to enable him lawfully to enter into, exercise its rights and comply with his obligations in this Deed; |
| (b) | to make this Deed admissible in evidence in Hong Kong; and/or |
| (c) | to enable him to create the security expressed to be created by him pursuant to this Deed and to ensure that such security has the
priority and ranking it is expressed to have, |
have been obtained or effected and are in full
force and effect;
| 15.1.7 | subject to Legal Reservations, the choice of the laws of Hong Kong as the governing law of this Deed will be recognised and enforced
in the courts of Hong Kong; |
| 15.1.8 | subject to Legal Reservations, any judgment obtained in the courts of Hong Kong in relation to this Deed will be recognised and enforced
in Hong Kong; |
| 15.1.9 | save and except for those as set out in Clause 4 (Perfection of Security) herein, under the law of the British Virgin Islands,
it is not necessary that this Deed be filed, recorded or enrolled with any court or other authority in that jurisdiction or that any stamp,
registration or similar tax be paid on or in relation to this Deed; |
| 15.1.10 | all consents necessary to enable any asset that is expressed to be subject to any security under this Deed to be the subject of effective
security under this Deed have been obtained and are in full force and effect; |
| 15.1.11 | he is, and will be, the sole and absolute beneficial owner of the Charged Property free from Security Interest (other than the security
constituted pursuant to this Deed) and this Deed creates in favour of the Investor first ranking Security Interest over the Charged Property; |
| 15.1.12 | the Shares and, to the extent applicable, the other Share Collateral, are duly authorised, validly issued, fully paid and not subject
to any option to purchase or similar right and the particulars of the Shares set out in Schedule 1 (Particulars of Shares) are
accurate and the Shares described therein constitute 100% of the issued shares of the Company; |
| 15.1.13 | he has not sold or otherwise disposed of, or created, granted or permitted to subsist any security over, all or any of his right,
title and interest in the Charged Property (other than the security constituted pursuant to this Deed and other than as expressly permitted
under this Deed); |
| 15.1.14 | the Share Collateral has been validly issued and allotted by the Company and are fully paid up and there are no monies or liabilities
payable or outstanding by the Chargor in relation to any of the Shares; |
| (a) | no petition has been presented, and no order has been made, for the bankruptcy of the Chargor or for the appointment of a bankruptcy
trustee to the Chargor; |
| (b) | the Chargor has not proposed or agreed to a composition, compromise, assignment or arrangement with any of his creditors; and |
| (c) | the Chargor is not subject to or threatened by any other procedures or steps which are analogous to those set out above. |
| 15.1.16 | no Event of Default is continuing or might reasonably be expected to result from the entry into, the performance of, or any transaction
contemplated by this Deed; |
| 15.1.17 | no other event or circumstance is outstanding which constitutes (or, with the expiry of a grace period, the giving of notice, the
making of any determination or any combination of any of the foregoing, would constitute) a default or termination event (however described)
under any other agreement or instrument which is binding on him or to which his assets are subject; and |
| 15.1.18 | no litigation, arbitration, investigation or administrative proceedings of or before any court, arbitral body or agency been started
or threatened, or is pending, against him or his assets which may have a Material Adverse Effect. |
Each of the representations and warranties
above shall be deemed to be repeated by the Chargor on each day of the Security Period by reference to the facts and circumstances existing
at the date on which such representation or warranty is deemed to be made or repeated.
16.1 | The Chargor hereby covenants during the Security Period it will remain the legal and the beneficial owner of the Charged Property
(subject only to the security created by this Deed) and that it shall not: |
| 16.1.1 | create or permit to subsist any security (other than that created by this Deed) on or in respect of the whole of any part of the Charged
Property or any of its interest therein; or |
| 16.1.2 | sell, lease, assign, lend, dispose of, transfer or otherwise deal with any of its interest in the Charged Property (other than pursuant
to this Deed) and in any such case, without the prior written consent of the Investor; or |
| 16.1.3 | do, or permit to be done, any act or thing that would or might depreciate, jeopardise or otherwise prejudice the security held by
the Investor, or diminish the value of any of the Charged Property
or the effectiveness of the security created by this Deed. The Chargor shall, promptly on becoming aware, notify the Investor in writing
of any representation or warranty set out in Clause 15.1 (Representations) which is incorrect or misleading in any respect when
made or deemed to be repeated and any breach of any covenant set out in this Deed. |
16.2 | The Chargor shall deliver to the Investor immediately upon receipt by the Chargor copies of all notices of general meetings, proposed
shareholder resolutions of the Company, financial statements and all other materials distributed to, or requiring action by, shareholders
of the Company from time to time and all other materials and information distributed by the Company to, or requiring action by, the shareholders
of the Company and such other information concerning the Company (that the Chargor as a shareholder of the Company would have known) as
the Investor shall from time to time request. |
16.3 | The Chargor shall remain liable to perform all the obligations assumed by it in relation to the Charged Property and the Investor
shall be under no obligation of any kind whatsoever in respect thereof or be under any liability whatsoever in the event of any failure
by the Chargor to perform its obligations in respect thereof. |
16.4 | The Chargor shall not take, or allow the taking of, any action on its behalf which may result in the rights attaching to, or conferred
by, all or any of the Charged Property being altered. |
16.5 | The Chargor shall not waive, release, settle, compromise, abandon or set-off any claim or the liability of any person in respect of
the Related Rights, or do or omit to do any other act or thing whereby the recovery in full of the Related Rights as and when they become
payable may be impeded. |
16.6 | The Chargor shall not, and shall procure that there shall not, effect any sale, transfer or disposal of any Shares or Charged Property
or any interest therein, without the prior written consent of the Investor. |
16.7 | If the Chargor sells, assigns, or otherwise disposes of or parts with possession of or deals with or otherwise creates an interest
in (a “Disposal”) any Charged Property in breach of Clause 16.6, then, despite that Disposal: |
| 16.7.1 | the Investor is not to be taken to have authorised the Disposal; |
| 16.7.2 | the Investor is not to be taken to have agreed that the Disposal would extinguish any Security Interest the Investor holds in that
Charged Property; |
| 16.7.3 | to the extent the law allows, the Security Interest continues in that Charged Property; and |
| 16.7.4 | the Chargor must give the Investor prompt notice of the Disposal and any information requested by the Investor in relation to the
other person or persons party to the Disposal to enable the Investor to perfect the Security Interest as against that person or those
persons. |
| 16.8 | The Chargor shall promptly: |
| (a) | obtain, comply with and do all that is necessary to maintain in full force and effect; and |
| (b) | supply certified copies to the Investor of, |
any authorisation required under any
law or regulation of its jurisdiction of incorporation to enable it to perform its obligations under this Deed and to ensure the legality,
validity, enforceability or admissibility in evidence in its jurisdiction of incorporation of this Deed.
| 17. | EFFECTIVENESS OF SECURITY |
The security created by or pursuant
to this Deed shall remain in full force and effect as a continuing security for the Secured Obligations unless and until discharged
by the Investor. No part of the security from time to time intended to be constituted by this Deed will be considered satisfied or discharged
by any intermediate payment, discharge or satisfaction of the whole or any part of the Secured Obligations.
The security created by this Deed and
the Collateral Rights shall be cumulative, in addition to and independent of every other security which the Investor may at any time hold
for any or all of the Secured Obligations or any rights, powers and remedies provided by law. No prior security held by the Investor over
the whole or any part of the Charged Property shall merge into the security constituted by this Deed. The foregoing applies notwithstanding
any receipt, release or discharge endorsed or given in respect of or under any such other Security.
| 17.3 | Chargor’s Obligations |
None of the obligations of the Chargor
under this Deed or the Collateral Rights shall be affected by an act, omission, matter, thing or event which, but for this Clause 17.3,
would reduce, release or prejudice any of its obligations under this Deed, any of the obligations of the Chargor under this Deed or the
Collateral Rights including (without limitation and whether or not known to it or the Investor):
| 17.3.1 | the winding-up, dissolution, administration, reorganisation, death, insolvency, incapacity or bankruptcy of the Chargor or any other
person or any change in its status, function, control or ownership; |
| 17.3.2 | any of the obligations of the Chargor or any other person under any Transaction Document, or under any other security relating to
any Transaction Document, being or becoming illegal, invalid, unenforceable or ineffective in any respect; |
| 17.3.3 | any time, waiver or consent granted to, or composition with, the Chargor or any other person; |
| 17.3.4 | the release of the Chargor or any other person under the terms of any composition or arrangement with any creditor of the Chargor
or any other person; |
| 17.3.5 | the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights
against, or security over assets of, the Chargor or other person or any non-presentation or non-observance of any formality or other requirement
in respect of any instrument or any failure to realise the full value of any security; |
| 17.3.6 | any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of the Chargor
or any other person; |
| 17.3.7 | any amendment, novation, supplement, extension (whether of maturity or otherwise) or restatement (in each case however fundamental
and of whatsoever nature, and whether or not more onerous) or replacement of a Transaction Document or any other document or security
or of the Secured Obligations; |
| 17.3.8 | any unenforceability, illegality or invalidity of any obligation of any person under any Transaction Document or any other document
or security; |
| 17.3.9 | any insolvency or similar proceedings; |
| 17.3.10 | the existence of any claim, set-off right or other right that the Chargor may have at any time against the Investor or any other person;
or |
| 17.3.11 | any law, regulation or decree or order of any jurisdiction affecting the Chargor. |
Without prejudice to the generality
of Clause 17.3 (Chargor’s Obligations), the Chargor expressly confirms that it intends that the security created under this
Deed, and the Collateral Rights, shall extend from time to time to any (however fundamental and of whatsoever nature, and whether or not
more onerous) variation, increase, extension or addition of or to any of the Transaction Documents or any other security relating to any
Transaction Document.
No failure on the part of the Investor
to exercise, or any delay on its part in exercising, any Collateral Right shall operate as a waiver thereof or constitute an election
to affirm this Deed. No election by the Investor or any Receiver to affirm this Deed or to waive any Collateral Rights shall be effective
unless it is in writing. The Collateral Rights are cumulative and not exclusive of the rights of the Investor or any Receiver under the
general law, nor shall any single or partial exercise of any Collateral Right preclude any further or other exercise of that or any other
Collateral Right.
The Chargor waives any right it
may have of first requiring the Investor (or any trustee or agent on its behalf) to proceed against or enforce any other right or
security or claim payment from any person or file any proof or claim in any insolvency, administration, winding-up or liquidation
proceedings relative to any other person before claiming from the Chargor under this Deed.
None of the Investor, its nominee(s) or
any Receiver shall be liable by reason of (a) taking any action permitted by this Deed or (b) any neglect or default in connection
with all or any part of the Charged Property or (c) taking possession of or realising all or any part of the Charged Property, except
in the case of wilful default upon its part (as finally judicially determined).
If, at any time, any provision of this
Deed is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity
or enforceability of the remaining provisions of this Deed under such laws nor of such provision under the laws of any other jurisdiction
shall in any way be affected or impaired thereby and, if any part of the security intended to be created by or pursuant to this Deed is
invalid, unenforceable or ineffective for any reason, that shall not affect or impair any other part of that security.
The Investor shall not be obliged to
make any demand of or enforce any rights or claim against the Chargor or any other person, to take any action or obtain judgment in any
court against the Chargor or any other person or to make or file any proof or claim in a liquidation, bankruptcy or insolvency of the
Chargor or any other person or to enforce or seek to enforce any other security in respect of any or all of the Secured Obligations before
exercising any Collateral Right.
Until the time when (i) all Secured
Obligations have been irrevocably discharged in full and (ii) all amounts which may be or become payable by the Chargor and the Chargor
under or in connection with the Transaction Documents have been irrevocably paid in full, the Chargor will not (unless the Investor otherwise
directs) exercise any rights which it may have by reason of performance by it of its obligations under this Deed:
| 17.10.1 | to be indemnified by the Chargor; |
| 17.10.2 | to claim any contribution from any guarantor of the Chargor’s obligations under any or all of the Transaction Documents; and/or |
| 17.10.3 | to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Investor under the Transaction
Documents or of any other guarantee or security taken pursuant to, or in connection with, the Transaction Documents by the Investor; |
| 17.10.4 | to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect
of which the Chargor has given a guarantee, security, undertaking or indemnity under any Transaction Document; |
| 17.10.5 | to exercise any right of set-off against any Obligor; and/or |
| 17.10.6 | to claim or prove as a creditor of any Obligor in competition
with the Investor. |
If the Chargor shall receive any benefit, payment or distribution
in relation to any such right it shall hold that benefit, payment or distribution (or so much of it as may be necessary to enable all
Secured Obligations to be paid in full) on trust for the Investor, and shall promptly pay or transfer the same to the Chargor (or as
the Investor may direct) for application in accordance with Clause 12.1 (Order of Application).
| 17.11 | Settlement conditional |
Any settlement, discharge or release
hereunder in relation to the Chargor or all or any part of the Charged Property shall be conditional upon no security or payment by the
Chargor to the Investor being avoided or reduced by virtue of any bankruptcy, insolvency, liquidation or similar laws of general application
or any similar event or for any other reason and shall in the event of any such avoidance or reduction or similar event be void, and
the liability of the Chargor under this Deed and the Security Interest created by this Deed shall continue as if such payment, settlement,
discharge or release had not occurred.
| 18.1 | Redemption of Security |
Upon the time when (i) all Secured
Obligations have been irrevocably discharged in full, and (ii) all amounts which may be or become payable by the Chargor under or
in connection with the Transaction Documents have been irrevocably paid in full, the Investor shall, at the request (with reasonable
notice) and cost of the Chargor, as soon as reasonably practicable, release and cancel the security constituted by this Deed on the relevant
Share Collateral and procure the reassignment to the Chargor of the property and assets assigned to the Investor and the return to the
Chargor of the certificates and documents delivered to the Investor pursuant to this Deed (to the extent not otherwise sold, assigned
or otherwise disposed of or applied in accordance with this Deed), in each case subject to Clauses 18.2 (Avoidance of Payments)
and 17.11 (Settlement conditional) and without recourse to, or any representation or warranty by, the Investor or any of its nominees.
| 18.2 | Avoidance of Payments |
If the Investor reasonably considers
that any amount paid or credited to or recovered by the Investor from the Chargor or the Guarantor is capable of being avoided or reduced
by virtue of any bankruptcy, insolvency, liquidation or similar laws, the liability of the Chargor under this Deed and the security constituted
by this Deed shall continue and such amount shall not be considered to have been irrevocably paid.
| 19. | SUBSEQUENT AND PRIOR SECURITY INTERESTS |
| 19.1 | Subsequent security interests |
If the Investor (acting in its capacity
as chargee or otherwise) at any time receives or is deemed to have received notice of any subsequent security or other interest affecting
all or any part of the Charged Property or any assignment or transfer of the Charged Property which is prohibited by the terms of this
Deed or the Transaction Documents, all payments thereafter by or on behalf of the Chargor to the Investor shall be treated as having
been credited to a new account of the Investor and not as having been applied in reduction of the Secured Obligations as at the time
when (or at any time after) the Investor received such notice of such subsequent security or other interest or such assignment or transfer.
| 19.2 | Prior security interests |
In the event of any action, proceeding
or step being taken to exercise any powers or remedies conferred by any prior ranking security or upon the exercise by the Investor or
any Receiver of any power of sale under this Deed or any Collateral Right, the Investor may redeem any prior ranking security over or
affecting any Charged Property or procure the transfer of any such prior ranking security to itself. The Investor may settle and agree
the accounts of the beneficiary of any such prior security and any accounts so settled and agreed will be conclusive and binding on the
Chargor. All principal, interest, costs, charges, expenses and/or other amounts relating to and/or incidental to any such redemption
or transfer shall be paid by the Chargor to the Investor upon demand.
| 20. | CURRENCY CONVERSION AND INDEMNITY |
For the purpose of or pending the discharge
of any of the Secured Obligations the Investor may convert any money received, recovered or realised or subject to application by it
under this Deed from one currency to another, as the Investor may think fit, and any such conversion shall be effected at the Investor’s
spot rate of exchange (or, if no such spot rate of exchange is quoted by the Investor, such other rate of exchange as may be available
to the Investor) for the time being for obtaining such other currency with such first-mentioned currency.
If any sum (a “Sum”)
owing by the Chargor under this Deed or any order or judgment given or made in relation to this Deed has to be converted from the currency
(the “First Currency”) in which such Sum is payable into another currency (the “Second Currency”)
for the purpose of:
| 20.2.1 | making or filing a claim or proof against the Chargor; |
| 20.2.2 | obtaining an order or judgment in any court or other tribunal; |
| 20.2.3 | enforcing any order or judgment given or made in relation to this
Deed; or |
| 20.2.4 | applying the Sum in satisfaction of any of the Secured Obligations, |
the Chargor shall indemnify the Investor
from and against any loss suffered or incurred as a result of any discrepancy between (a) the rate of exchange used for such purpose
to convert such Sum from the First Currency into the Second Currency and (b) the rate or rates of exchange available to the Investor
at the time of such receipt or recovery of such Sum.
| 21. | COSTS, EXPENSES AND INDEMNITY |
The Chargor shall, on demand of the
Investor, reimburse the Investor on a full indemnity basis for all costs and expenses (including legal fees and any value added tax)
incurred by the Investor in connection with (a) the execution of this Deed or otherwise in relation to this Deed, including but
not limited to costs and expenses relating to any amendment of this Deed, (b) the perfection or enforcement of the security constituted
by this Deed, (c) the exercise of any Collateral Right, together with interest from the date such costs and expenses were incurred
to the date of reimbursement of the same by the Chargor, and (d) the release of the security constituted by this Deed.
The Chargor shall pay all stamp, registration
and other Taxation to which this Deed, the security contemplated in this Deed and/or any judgment given in connection with this Deed
is, or at any time may be, subject and shall, from time to time, indemnify the Investor on demand against any liabilities, costs, claims
and/or expenses resulting from any failure to pay or delay in paying any such Tax.
The Chargor shall, notwithstanding
any release or discharge of all or any part of the security constituted by this Deed, indemnify the Investor, its agents, attorneys and
any Receiver against any action, proceeding, claims, losses, liabilities and costs which it may sustain as a consequence of any breach
by the Chargor of the provisions of this Deed, the exercise or purported exercise of any of the rights and powers conferred on any of
them by this Deed or otherwise relating to the Charged Property or any part thereof.
| 22. | PAYMENTS FREE OF DEDUCTION |
All payments to be made to the Investor
under this Deed shall be made free and clear of and without deduction for or on account of any Taxation unless the Chargor is required
to make such payment subject to the deduction or withholding of any Taxation, in which case the sum payable by the Chargor in respect
of which such deduction or withholding is required to be made shall be increased to the extent necessary to ensure that, after the making
of such deduction or withholding, the person on account of whose liability to tax such deduction or withholding has been made receives
and retains (free from any liability in respect of any such deduction or withholding) a net sum equal to the sum which it would have
received and so retained had no such deduction or withholding been made or required to be made.
| 22.2 | No set-off or counterclaim |
All payments to be made by the Chargor
under this Deed shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.
| 23. | DISCRETION AND DELEGATION |
Any liberty or power which may be exercised
or any determination which may be made under this Deed by the Investor or any Receiver may, subject to the applicable terms and conditions
of, as the case may be, the Transaction Documents, be exercised or made in its absolute and unfettered discretion without any obligation
to give reasons.
| (a) | Each of the Investor and any Receiver shall have full power to delegate
(either generally or specifically) the powers, authorities and discretions conferred on it
by this Deed (including without limitation the power of attorney under Clause 14 (Power
of Attorney)) on such terms and conditions as it shall see fit which delegation shall
not preclude any subsequent exercise, any subsequent delegation or any revocation of such
power, authority or discretion by the Investor or any Receiver. |
| (b) | Neither the Investor nor any Receiver will be in any way liable or
responsible to the Chargor for any loss or liability arising from any act, default, omission,
neglect or misconduct on the part of any delegate or sub-delegate. |
In acting as chargee, the Investor
shall have the benefit of all indemnities, protections and rights on its part set out in the Transaction Documents, as if set out fully
herein.
The Investor may set off any matured
obligation due from the Chargor under any or all of the Transaction Documents (to the extent beneficially owned by the Investor) against
any matured obligation owed by the Investor to the Chargor, regardless of the place of payment, booking branch or currency of either
obligation. If such obligations are in different currencies, the Investor may convert either obligation at a market rate of exchange
in its usual course of business for the purpose of such set-off.
This Deed shall be binding upon and
enure to the benefit of each party hereto and its and/or any subsequent successors and permitted assigns and transferees. Without prejudice
to the foregoing, this Deed shall remain in effect despite any amalgamation or merger (however effected) relating to the Investor; and
references to the Investor herein shall be deemed to include any person who, under the laws of its jurisdiction of incorporation or domicile,
has assumed the rights and obligations of the Investor under this Deed or to which, under such laws, those rights and obligations have
been transferred.
| 25.2 | No Assignment or Transfer by Chargor |
The Chargor may not assign or transfer
any or all of its rights (if any) and/or obligations under this Deed.
| 25.3 | Assignment or Transfer by Investor |
The Investor may assign or transfer
any or all of its rights (if any) and/or obligations under this Deed.
The Investor shall be entitled to disclose
such information concerning the Chargor or any other person and this Deed as the Investor considers appropriate to any actual or proposed
direct or indirect successor or to any person to whom information may be required to be disclosed by applicable law.
| 26. | AMENDMENTS AND WAIVERS |
| 26.1 | Any provision of this Deed may be amended or waived only by agreement
in writing between the Chargor and the Investor. No third party’s signature is required
for any amendment. |
| 26.2 | No failure on the part of the Investor to exercise, or delay on its
part in exercising, any or all of its rights hereunder shall operate as a waiver thereof
or constitute an election to affirm this Deed. No election to affirm this Deed on the part
of the Investor shall be effective unless it is in writing. No single or partial exercise
of any such right or remedy shall preclude any further or other exercise of such or any other
right or remedy. |
The perpetuity period under the rule against
perpetuities, if applicable to this Deed, shall be the period of 80 years from the date of the Subscription Agreement.
| 28.1 | Any notice, claim or demand in connection with this Deed shall be
in writing, in English language, and marked “IMPORTANT LEGAL NOTICE” (each a
“Notice”), and shall be delivered or sent to the recipient at its email
address, facsimile number or address (where applicable) listed below, or any other email
address, facsimile number or address notified to the sender by the recipient for the purposes
of this Instrument: |
To the Chargor: |
CHEN SHENG (陈升)
Address: 10 Jiuxianqiao East Road, Chaoyang District,
Beijing 100016
Email: Josh.Chen@vnet.com |
|
Facsimile: +86 10 8456 4234 |
|
|
To the Investor: |
SHINING RICH HOLDINGS LIMITED
耀富控股有限公司
Email: workforpapper@163.com
Attention: Fang Li / Tong Lin |
| 28.2 | If any Investor that is a natural Person dies, until the Party giving
a Notice has received notice in writing of the grant of probate of his will or letters of
administration of his estate (or equivalent), any Notice so given shall be as effectual as
if he was still living. |
| 28.3 | Without prejudice to Clause 28.2, any Notice shall be deemed to have
been served: (a) if served by hand, when delivered and proof of delivery is obtained
by the delivery party, (b) if served by overnight courier, on the next Business Day,
or (c) if sent by facsimile or email, only when received in legible form by at least
one of the relevant facsimile number or email addresses (as applicable) of the person(s) to
whom the communication is made. Any Notice received on a Sunday or public holiday shall be
deemed to be received on the next Business Day. |
This Deed may be executed in any number of counterparts,
all of which taken together shall constitute one and the same instrument.
| 30.1 | A Person who is not a Party has no right under the Contracts (Rights
of Third Parties) Ordinance (Chapter 623 of the Laws of Hong Kong) to enforce or to enjoy
the benefit of any term of this Deed. |
| 30.2 | Notwithstanding any term of this Deed, the consent of any person
who is not a Party is not required to rescind or vary this Deed at any time. |
This Deed shall be governed by and shall be construed in
accordance with Hong Kong law.
| 32.1 | With respect to any dispute, controversy or claim arising out of
or relating to this Deed, including the existence, validity, performance, interpretation,
construction, breach or termination thereof or the consequences of its nullity (each a “Dispute”),
the Parties hereby irrevocably submit to the non-exclusive jurisdiction of the Hong Kong
courts. |
| 32.2 | The Chargor irrevocably waives, to the extent permitted by applicable
law, with respect to itself and its revenues and assets (irrespective of their use or intended
use), all immunity on the grounds of sovereignty or other similar grounds from: |
| 32.2.2 | jurisdiction of any court or arbitral tribunal; |
| 32.2.3 | relief by way of injunction or order for specific performance or
recovery of property; |
| 32.2.4 | attachment of its assets (whether before or after judgment); and |
| 32.2.5 | execution or enforcement of any judgment to which it or its revenues
or assets might otherwise be entitled in any proceedings in the courts or arbitral tribunal
of any jurisdiction (and irrevocably agrees, to the extent permitted by applicable law, that
it will not claim any immunity in any such proceedings). |
| 32.3 | This Clause 32 (Jurisdiction) is for the benefit of the Investor
only. As a result and notwithstanding Clause 32.1, nothing herein shall prevent the Investor
from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the
extent allowed by law the Investor may take concurrent proceedings in any number of jurisdictions. |
| 33.1 | Without prejudice to any other mode of service allowed under any
relevant law, the Chargor irrevocably appoints VNET Group Limited of 37/F., Tower 1 Metroplaza,
Hing Fong Road, Kwai Fong, Hong Kong as its agent under this Deed for service of process
in any proceedings before the Hong Kong courts in connection with this Deed. |
| 33.2 | If any person appointed as process agent under this Clause is unable
for any reason to so act, the Chargor must immediately (and in any event within five (5) days
of the event taking place) appoint another agent on terms acceptable to the Investor. Failing
this, the Investor may appoint another process agent for this purpose. |
| 33.3 | The Chargor agrees that failure by a process agent to notify it of
any process will not invalidate the relevant proceedings. |
| 33.4 | This Clause does not affect any other method of service allowed by
law. |
SCHEDULE 1
PARTICULARS OF SHARES
Legal and Beneficial owner |
Issued shares of the Company |
CHEN Sheng (陈升) |
four (4) ordinary shares |
SCHEDULE 2
FORMS OF INSTRUMENT OF
TRANSFER
in consideration of the Sum
of |
|
|
paid
to me/us by (name in full) |
|
|
of
(full address) |
|
|
|
(hereinafter called “the said Transferee”)
do hereby transfer to the said Transferee the |
standing in my/our name in
the Register of |
|
to
hold unto the said Transferee or (his/her Executors or Administrators/its Assigns), subject to the several conditions upon which I/we
hold the same at the time of execution hereof. And I/we the said Transferee do hereby agree to take the said shares subject to the same
conditions.
Dated day
of .
|
|
(Signature of Transferor) |
|
|
|
|
|
(Signature of Transferee) |
|
SCHEDULE 3
FORM OF IRREVOCABLE PROXY AND POWER OF
ATTORNEY
FAST HORSE TECHNOLOGY LIMITED
(the “Company”)
The undersigned, CHEN SHENG
( 陈 升 ), as a shareholder of the Company, hereby makes,
constitutes and appoints the following person:
[to be left blank]
(the “Attorney”)
as the true and lawful attorney and proxy of the undersigned with full power to appoint a nominee or nominees to act hereunder from time
to time and to vote any existing or further shares in the Company which may have been or may from time to time be issued and/or registered
in our name (the “Shares”) at all general meetings of shareholders or stockholders of the Company with the same force
and effect as the undersigned might or could do and to requisition and convene a meeting or meetings of the shareholders of the Company
for the purpose of appointing or confirming the appointment of new directors of the Company and/or such other matters as may in the opinion
of the Attorney be necessary or desirable for the purpose of implementing the Share Charge referred to below and the undersigned hereby
ratifies and confirms all that the said Attorney or its nominee or nominees shall do or cause to be done by virtue hereof.
The Shares have been charged to
the Attorney pursuant to a share charge dated 2024
between CHEN SHENG ( 陈 升 ) as Chargor and SHINING
RICH HOLDINGS LIMITED 耀富控股有限公司
as Investor (the “Share Charge”).
Notwithstanding anything contained
in this instrument, the power of attorney and proxy shall only be exercisable upon and after the occurrence of a Triggering Event (as
defined in the Share Charge).
This power and proxy is given
to secure a proprietary interest of the donee of the power and is irrevocable and shall remain irrevocable as long as the Share Charge
is in force.
IN WITNESS whereof this instrument has been duly executed this day
of 2024
as a deed.
(The remainder of this
page is intentionally left blank)
SIGNED SEALED AND DELIVERED |
) |
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by |
) |
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CHEN SHENG (陈升) |
) |
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) |
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) |
|
) |
in the presence of: |
) |
CHEN SHENG (陈升) |
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Signature of witness |
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Name of witness: |
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Address of witness: |
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SCHEDULE 4
FORM OF LETTER OF RESIGNATION
| To: | The
Board of Directors |
Fast Horse Technology Limited (the “Company”)
Date:
Dear Sirs,
Resignation
I hereby tender my unconditional and irrevocable resignation
as a director of the Company with effect from the date of this letter. I confirm that:
| 1. | I (in my capacity as a director of the Company) have no claims whatsoever
against the Company or any of its subsidiaries or associated companies (if any) on any account
(whether for loss of office, for accrued remuneration or for fees or otherwise howsoever);
and |
| 2. | there is no outstanding agreement or arrangement with the Company or any
of its subsidiaries or associated companies (if any) under which the Company or any of such
subsidiaries or associated companies has or would have any obligation to me whether now or
in the future or under which I would derive any benefit (in each case, in my capacity as
a director of the Company). |
This letter is governed by and shall be construed in accordance with
the laws of Hong Kong.
|
|
[name of relevant director] |
|
SCHEDULE 5
FORM OF WRITTEN RESOLUTIONS
FAST HORSE TECHNOLOGY LIMITED
(the “Company”)
Dated: [to be left blank]
IT IS RESOLVED THAT:
| 1. | each of the following transfers of the shares in the Company be approved
and that, upon the delivery to any director of the Company of a duly completed instrument
of transfer in respect of any of the following transfers, the name of the relevant transferee
be entered forthwith in the register of members of the Company in respect of the relevant
shares so transferred and that new share certificates in respect of such shares be issued
forthwith to such transferee in accordance with the Articles of Association of the Company: |
[to be left blank]
| 2. | each of the following persons be appointed as an additional director of
the Company with immediate effect: |
[to be left blank]
| 3. | the resignation of the following persons as directors of the Company be
accepted with immediate effect: |
[to be left blank]
| 4. | the above changes in members and directors of the Company be entered in
the Register of Directors and Register of Members of the Company and that any director of
the Company be authorised to sign and deliver any relevant return in connection therewith. |
[all the directors of the Company to state their names and sign]
SCHEDULE 6
FORM OF LETTER OF UNDERTAKING AND AUTHORISATION
To: Shining
Rich Holdings Limited 耀富控股有限公司as
Investor (as defined in the Deed) (which expression shall include its successors, assigns and transferees)
Dear Sirs,
Deed of Share
Charge dated 2024
by CHEN SHENG (陈升) in favour of SHINING RICH HOLDINGS LIMITED
耀富控股有限公司 as Investor
(as amended from time to time, the “Deed”)
Terms and expressions defined in or construed for the purposes of
the Deed shall have the same meaning herein.
I hereby unconditionally and irrevocably:
| 1 | undertake to procure, to the extent of my
powers as a director of Fast Horse Technology Limited (the “Company”),
that any or all of the shares in the Company which are charged to you pursuant to the Deed
shall upon your request be promptly registered in the name of yourself or (at your request)
any person(s) whom you may nominate; |
| 2 | authorise each of you and any other person(s) authorised
by you severally to complete, date and put into effect: |
| (a) | the attached letter of resignation signed by me; |
| (b) | the attached written resolutions of the board of directors of the
Company signed by me; and |
| (c) | any other document signed by me and delivered pursuant to Clause 4.2
(Delivery of Documents of Title) of the Deed, |
in each case at any time after the security constituted
by the Deed shall have become enforceable in accordance with its terms.
This letter is governed by and shall be construed in accordance with
the laws of Hong Kong.
IN WITNESS WHEREOF this deed has been executed the day and
year above written.
SIGNED SEALED AND DELIVERED |
) |
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by |
) |
|
[name of
relevant director] |
) |
|
In the presence
of |
) |
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Signature of witness: |
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Name of witness: |
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SCHEDULE 7
FORM OF LETTER TO
REGISTERED AGENT FROM THE COMPANY
[Registered Agent]
[Address]
British Virgin Islands
[Date]
Dear Sirs
Fast Horse Technology Limited (the “Company”)
We hereby notify you that Sheng Chen (the “Chargor”)
has entered into a charge over shares in favour of Shining Rich Holdings Limited 耀富控股有限公司(the
“Investor”) in respect of all the shares held by the Chargor in the Company (the “Share Charge”).
Under the terms of the Share Charge, the Investor is permitted, following the occurrence of an Event of Default (as defined in the Share
Charge) (an “Enforcement Event”), to, inter alia, perfect the transfer of the shares held by the Chargor in the Company
to the Investor.
From the date of
an Enforcement Event as may be notified to you by the Investor, we irrevocably instruct and authorise you that your client of record
is ,
and you should release all such information, do all such things and perform all such acts as may be requested or required by and/or
their duly authorised representatives regarding information held by you of the Company including, without limitation, providing access
to all Company documents and acting on the instructions of the Investor to update the register of members of the Company to reflect the
transfer of shares by the Chargor to the Investor or one of its nominees.
We hereby agree and instruct you that any written
confirmation by the Investor to you that an Enforcement Event has occurred shall be conclusive and binding.
As of the date of this letter you are also irrevocably
instructed and authorised to annotate the Register of Members of the Company with:
“All the ordinary share registered in the
name of Sheng Chen (陈升) are charged in favour of Shining
Rich Holdings Limited 耀富控股有限公司
pursuant to a share charge dated [enter date], as amended from time to time. The date on which this annotation was entered
in the Register of Members is [enter date].”
Yours faithfully,
For and on behalf of |
|
Fast Horse Technology Limited |
|
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|
Name: |
|
Title: |
|
Acknowledged and agreed by: |
|
|
|
|
|
Authorised Signatory |
|
for and on behalf of |
|
[Registered Agent of the Company] |
|
SCHEDULE 8
FORM OF DEED OF UNDERTAKING AND CONFIRMATION
FROM THE COMPANY
[Date]
Shining Rich Holdings Limited
耀富控股有限公司
(the “Investor”)
Dear Sirs
Fast Horse Technology Limited (the “Company”)
We refer to the charge over shares in respect
of all the shares held by the Chargor in the Company (the “Share Charge”) between Sheng Chen as chargor (the “Chargor”)
and the Investor whereby, inter alia, the Chargor granted a charge over the Shares and all Related Rights in favour of the Investor.
Capitalised words and expressions used in this
deed which are not expressly defined herein have the same meanings ascribed to them in the Share Charge.
This deed of undertaking and confirmation is
given pursuant to the Share Charge.
| 1. | For valuable consideration receipt of which is hereby acknowledged, the
Company hereby irrevocably and unconditionally undertakes while an Event of Default has occurred
and is continuing to register in the Register of Members any and all share transfers to the
Investor or its nominee(s) in respect of the Shares submitted to the Company by the
Investor. |
| 2. | The Company hereby confirms that it has instructed its registered agent
to make an annotation of the existence of the Share Charge and the security interests created
thereby in the Register of Members pursuant to the Share Charge. |
| 3. | The Company hereby confirms that the Register of Members provided to the
Investor pursuant to the Share Charge is a certified copy of the original Register of Members
and it will not redesignate or otherwise seek to recreate the Register of Members. |
THIS DEED POLL has been executed and delivered
as a Deed Poll on the day and year first above written.
IN WITNESS WHEREOF this deed has been executed the day and
year above written.
EXECUTED AND DELIVERED |
) |
|
|
AS A DEED |
) |
|
by |
) |
|
for and on behalf of |
) |
Duly Authorised Signatory |
FAST HORSE TECHNOLOGY |
) |
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LIMITED |
) |
Name: |
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) |
Title: |
|
EXECUTION PAGE
The parties hereto have executed and delivered this Deed as a deed
the day and year first above written.
THE CHARGOR
SIGNED SEALED AND DELIVERED |
) |
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AS A DEED by |
) |
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CHEN SHENG (陈升) |
) |
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) |
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) |
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) |
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) |
/s/ CHEN SHENG |
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CHEN SHENG (陈升) |
[Execution Page –
Share Charge (Guarantor – BVI-2) – Chargor]
THE INVESTOR
SIGNED SEALED AND DELIVERED |
) |
|
AS A DEED by Wang
Peng |
) |
|
) |
, its authorised signatory for and on behalf of |
) |
SHINING RICH HOLDINGS LIMITED |
) |
耀富控股有限公司 |
) |
|
) |
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) |
/s/ Wang Peng |
|
) |
Name: Wang Peng |
|
) |
Title: Authorised Signatory |
[Execution Page –
Share Charge (Guarantor – BVI-2) – Investor]
Exhibit 99.31
EXECUTION VERSION
Dated 5th day of July 2024
CHEN SHENG
(陈升)
as Chargor
IN FAVOUR OF
SHINING RICH HOLDINGS LIMITED
耀富控股有限公司
as Investor
CHARGE OVER SHARES
in relation to shares in
SUNRISE
CORPORATE HOLDING LTD.
THIS
DEED is made on the 5th day of July 2024
BY:
CHEN SHENG ( 陈
升 ), a citizen of the PRC with passport number [*****] and PRC Identity Card number [*****] and domiciled
in the PRC (the “Chargor”)
IN FAVOUR OF:
SHINING RICH
HOLDINGS LIMITED 耀富控股有限公司,
a BVI business company incorporated under the laws of the British Virgin Islands with limited liability with company number 1972405
and with its registered office at Portcullis Chambers, 4th Floor Ellen Skelton Building, 3076 Sir Francis Drake Highway, Road Town,
Tortola, British Virgin Islands VG1110 (the “Investor”).
(The parties referred above shall collectively
be referred to as the “Parties” and each a “Party”.)
NOW THIS DEED WITNESSES as follows:
1. | DEFINITIONS AND INTERPRETATION |
Unless otherwise defined in this Deed
or unless the context otherwise requires, terms and expressions defined in or construed for the purposes of the Subscription Agreement
as amended from time to time shall bear the same meanings when used herein. In addition:
“Company” means
Sunrise Corporate Holding Ltd., a BVI business company incorporated under the laws of the British Virgin Islands with limited liability
with company number 1622848 and with its registered office at Kingston Chambers P.O. Box 173, Road Town, Tortola, British Virgin
Islands.
“BVI Act” means
the British Virgin Islands Business Companies Act 2004, as amended and/or supplemented from time to time.
“Charged Property”
means: (a) the Share Collateral (and any part of them); and (b) the Related Rights in relation to the Share Collateral of the
Chargor which from time to time are the subject of the security created or expressed to be created in favour of the Investor by or pursuant
to this Deed.
“Collateral Rights”
means all rights, powers and remedies of the Investor provided by or pursuant to this Deed or by law.
“Delegate” means
any delegate, agent, attorney or co-trustee appointed by the Investor or a Receiver.
“Event of Default”
has the meaning given to the term “Event of Default” under the Subscription Agreement.
“Guarantor” means
the Chargor.
“Receiver” means
a receiver or receiver and manager or an administrative receiver of the whole or any part of the Charged Property and that term will include
any appointee under a joint and/or several appointment.
“Related Rights”
means, in relation to any asset:
| (a) | the proceeds of sale of any part of that asset; |
| (b) | all rights under any licence, agreement for sale, lease or other disposal in respect of that asset; |
| (c) | all rights, powers, benefits, claims, contracts, warranties, remedies, security, guarantees, indemnities
and/or covenants for title in respect of that asset; |
| (d) | any moneys and proceeds paid or payable in respect of that asset; |
| (e) | (in the case where such asset comprises any share, equity interest or other security) all dividends,
distributions, interest and monies payable in respect thereof and any rights, assets, shares and/or securities deriving therefrom or accruing
thereto whether by way of redemption, bonus, preference, option, substitution, conversion, compensation or otherwise; and/or |
| (f) | (in the case where such asset comprises any share, equity interest or other security) any rights against
any clearing system in which such asset is held, |
(in each case) from time to time.
“Secured Obligations”
means all obligations at any time due, owing or incurred by any of the Obligors or any of their respective Affiliates, to the Investor
under the Transaction Documents, whether present or future, actual or contingent (and whether incurred solely or jointly and whether as
principal or surety or in some other capacity).
“Security Interest”
means:
| (a) | an interest or power reserved in or created or otherwise arising in or over an interest in any asset
whether under a bill of sale, mortgage, charge, lien, pledge, other security interest or preferential arrangement (including retention
of title), trust or power or otherwise by way of, or having similar commercial effect to, security for the payment of a debt, any other
monetary obligation or the performance of any other obligation; or |
| (b) | any agreement to grant or create anything referred to in either of paragraph (a) of this definition
and any other thing which gives a creditor priority to any other creditor with respect to any asset or an interest in any asset. |
“Security Period”
means the period from and including the date of execution of this Deed to and including the date of discharge of the security created
by this Deed in accordance with Clause 18 (Release of Security).
“Shares” means all
present and future issued share(s) of the Company, including the shares issued as at the date of this Deed specified in Schedule
1 (Particulars of Shares).
“Share Collateral”
means the Shares beneficially owned by the Chargor and/or any substitute or additional Shares thereof from time to time, while any Secured
Obligations are outstanding.
“Subscription
Agreement” means the subscription agreement dated _____________________2024 entered into between (among others) the Issuer as issuer, the
Guarantor as guarantor and the Investor as investor, pursuant to which, the Issuer agrees to issue to the Investor, and the Investor
agrees to subscribe from the Issuer, the Note (as supplemented, modified or amended from time to time).
“Triggering Event”
means the delivery by the Investor of a written notice in accordance with Clause 28 (Notices) to the Chargor that an Event of Default
has occurred.
In this Deed:
| 1.2.1 | the rules of construction set out in clause 1.2 of the Subscription Agreement shall apply to this Deed mutatis mutandis; and |
| 1.2.2 | any reference to the Chargor and the Investor shall be construed so as to include its or their (and any subsequent) successors and
any permitted assigns and transferees in accordance with their respective interests. |
The Chargor hereby covenants with the
Investor to discharge each of the Secured Obligations on their due date in accordance with their respective terms.
| (a) | The Chargor hereby charges as legal and beneficial owner in favour of the Investor, as security for the payment and discharge of the
Secured Obligations, by way of first fixed charge, all the Chargor’s right, title and interest from time to time in and to the Share
Collateral and all its other present and future Related Rights in relation thereto. |
| (b) | The Chargor hereby authorises the Investor to arrange at any time following the occurrence of an Event of Default which is continuing
for the Charged Property or any part thereof to be registered in the name of the Investor (or its nominee) thereupon to be held, as so
registered, subject to the terms of this Deed and at the request of the Investor, the Chargor shall without delay procure that the foregoing
shall be done. |
4.1 | The Chargor shall procure that the following annotation be inserted into the register of members (the “Register of Members”)
of the Company maintained by it in accordance with the BVI Act: |
“All the ordinary share registered
in the name of Sheng Chen (陈升) are charged in favour
of Shining Rich Holdings Limited 耀富控股有限公司
pursuant to a share charge dated [Date], as amended from time to time. The date on which this annotation was entered in the
Register of Members is [Date].”
Immediately upon entry of such details
has been made, and in any event within five (5) Business Days after the date of this Deed, provide a certified true copy of the annotated
Register of Members to the Investor.
4.2 | Delivery of Documents of Title |
The Chargor shall:
|
4.2.1 | on the date of this Deed, deposit with the Investor (or procure the deposit with the Investor of) the following in respect of any
Share Collateral existing as at the date of this Deed: |
| (a) | all original certificates or other documents of title to such Share Collateral (including a certified copy of the Register of Members
to be certified by director, company secretary or legal counsel of the Company); |
| (b) | undated share transfer forms in respect of such Share Collateral, executed in blank by or on behalf of the Chargor and other documents
which may be requested by the Investor from time to time in order to enable the Investor or its nominees to be registered as the owner
or otherwise obtain legal title to any of the Charged Property in the form set out in Schedule 2 (Forms of Instrument of Transfer); |
| (c) | undated irrevocable proxy and power of attorney in respect of such Shares, executed in blank by or on behalf of the Chargor in the
form set out in Schedule 3 (Form of Irrevocable Proxy and Power of Attorney); |
| (d) | an undated letter of resignation executed by each director of the Company in substantially the form set out in Schedule 4 (Form of
Letter of Resignation); |
| (e) | undated written resolutions of the board of directors of the Company executed by all of the directors of the Company in substantially
the form set out in Schedule 5 (Form of Written Resolutions); |
| (f) | a dated letter of undertaking and authorisation executed by each director of the Company in substantially the form set out in Schedule
6 (Form of Letter of Undertaking and Authorisation); |
| (g) | a dated letter of instruction executed by or on behalf of the Company to its registered agent in respect of the Register of Members
of the Company substantially in the form set
out in Schedule 7 (Form of Letter of Instruction (And Acknowledgement) to Registered Agent) which shall be delivered by, or
on behalf of, the Company to the registered agent and acknowledged by the registered agent promptly following execution of this Deed and
in any event no more than five (5) Business Days after the date of this Deed; and |
| (h) | a dated deed of undertaking and confirmation executed by or on behalf of the Company substantially in the form set out in Schedule
8 (Form of Deed of Undertaking and Confirmation from the Company). |
| 4.2.2 | promptly and, in any event, within five (5) Business Days of any acquisition of any Shares and/or upon any Shares becoming subject
to security hereunder and/or the accrual, issue or coming into existence of any stocks, shares, warrants or other securities in respect
of or derived from any Shares, notify the Investor of that occurrence and procure the delivery to the Investor of: |
| (a) | a certified true copy of the updated register of members of the Company, together with all original certificates and other documents
of title representing such items; and |
| (b) | undated share transfer forms or, as the case may be, other appropriate instruments of transfer in respect of such items executed in
blank by or on behalf of the Chargor, substantially in the form set out in Schedule 2 (Form of Instrument Transfer) (if applicable)
or in such other form as the Investor shall require, |
(except already delivered pursuant to this Clause 4.2).
| 4.2.3 | promptly upon any change in any director of the Company after the date of this Deed, procure the delivery to the Investor of: |
| (a) | (in the case of a new director) an undated letter of resignation executed by such director of the Company in substantially the form
set out in Schedule 4 (Form of Letter of Resignation); |
| (b) | undated written resolutions of the board of directors of the Company executed by all of the directors of the Company in substantially
the form set out in Schedule 5 (Form of Written Resolutions); |
| (c) | (in the case of a new director) an undated undertaking and authorisation executed by such director of the Company in substantially
the form set out in Schedule 6 (Form of Letter of Undertaking and Authorisation); |
| (d) | (in the case of a director who was the signatory of the letter of instruction referred to in Clause
4.2.1(g) on behalf of the Company) a dated letter of instruction executed by a remaining director (or, where a new director is
simultaneously appointed, the new director) on behalf of the Company to its registered agent in respect of the Register of Members
of the Company substantially in the form set out in Schedule 7 (Form of Letter of Instruction (And Acknowledgement) to
Registered Agent) which shall be delivered by, or on behalf of, the Company to the registered
agent and acknowledged by the registered agent; and |
| (e) | (in the case of a director who was the signatory of the deed of undertaking and confirmation referred to in Clause 4.2.1(h) on
behalf of the Company) a dated deed of undertaking and confirmation executed by a remaining director (or, where a new director is simultaneously
appointed, the new director) on behalf of the Company substantially in the form set out in Schedule 8 (Form of Deed of Undertaking
and Confirmation from the Company). |
| 4.2.4 | promptly upon any change in the registered agent of the Company after the date of this Deed, procure the delivery to the Investor
of a dated letter of instruction executed by or on behalf of the Company to its new registered agent in respect of the Register of Members
of the Company substantially in the form set out in Schedule 7 (Form of Letter of Instruction (And Acknowledgement) to Registered
Agent) which shall be delivered by the Company to the new registered agent and acknowledged by the new registered agent promptly following
delivery of such letter of instruction. |
5.1 | Further Assurance: General |
The Chargor shall promptly at its own
cost do all such acts and/or execute all such documents (including without limitation assignments, transfers, mortgages, charges, notices
and instructions) as the Investor may reasonably specify (and in such form as the Investor may reasonably require the Chargor to act/execute
in favour of the Investor or its nominee(s)):
| 5.1.1 | to perfect the security created or intended to be created in respect of the Charged Property (which may include, without limitation,
the execution by the Chargor of a mortgage, charge or assignment over all or any of the assets constituting, or intended to constitute,
any part of the Charged Property) or for the exercise of the Collateral Rights; and/or |
| 5.1.2 | after the occurrence of a Triggering Event, to deliver or procure that there shall be delivered to the Investor all other documents
the Investor considers necessary or desirable to enable the Investor to register such Charged Property in its name or in the name of its
nominees or any delegate and to facilitate the realisation of the Charged Property. |
The Chargor shall from time to time
take all such action (whether or not requested to do so by the Investor) as is or shall be reasonably available to it (including without
limitation obtaining and/or effecting all approvals) as may be necessary for the purpose of the creation, perfection, protection or maintenance
of any security conferred or intended to be conferred on the Investor by or pursuant to this Deed and/or to exercise its rights and to
perform the obligations expressed on its part under this Deed and/or to make this Deed admissible in evidence in any court having jurisdiction.
The Chargor shall promptly deliver
to the Investor all information that is available to it and that is required in order for the Investor to comply with any applicable laws
or regulations in respect of any Charged Property, or any similar provision in any articles of association or constitutional documents
relating to any Charged Property.
5.4 | Implied Covenants for Title |
The obligations of the Chargor under
this Deed shall be in addition to any covenants for title deemed to be included in this Deed under applicable law.
6. | NEGATIVE PLEDGE AND OTHER UNDERTAKINGS |
The Chargor undertakes that it shall
not, at any time during the subsistence of this Deed, create or permit to subsist any Security over all or any part of the Charged Property
unless expressly permitted under and in accordance with any of the Transaction Documents.
6.2 | No Disposal of Interests |
The Chargor undertakes that, during
the subsistence of this Deed, it shall not, and shall not agree to, except with the prior written consent of the Investor:
| 6.2.1 | sell, assign, transfer or otherwise dispose of any Charged Property; |
| 6.2.2 | procure or permit the Company to issue any new shares; |
| 6.2.3 | appoint any new director, or otherwise effect any change of director, of the Company; or |
| 6.2.4 | otherwise procure or permit a change of control over the Company or any Share Collateral. |
7. | OPERATIONS BEFORE AND AFTER TRIGGERING EVENT |
| 7.1.1 | The Chargor shall, at all times prior to the giving of a notice in writing by the Investor to the Chargor (a “Triggering
Event”) that an Event of Default has occurred, ensure that all dividends paid or made in respect of any Charged Property are
applied in accordance with the terms of the Subscription Agreement. |
| 7.1.2 | After the occurrence of a Triggering Event, the Chargor shall promptly pay over and deliver to the Investor for application in accordance
with this Deed (and the Investor may apply in accordance with this Deed) any and all dividends, distributions, interest and/or other monies
received and/or recovered by it in respect of all or any part of the Charged Property. |
| 7.1.3 | Any and all dividends, distributions, interest and/or other monies received, recovered or paid/delivered to the order of the Chargor
(other than in cash) in respect of any or all of the Charged Property shall be held by the Chargor subject to the security constituted
by this Deed, and the Chargor shall promptly deliver such dividends, distributions, interest and/or other monies to the Investor for application
in accordance with this Deed. |
7.2 | Operation: Before Triggering Event |
Prior to the occurrence of a Triggering
Event, the Chargor shall be entitled to exercise all voting rights in relation to any or all of the Share Collateral and (if applicable)
additional shares provided that the Chargor shall not exercise such voting rights in any manner that could give rise to, or otherwise
permit or agree to, any (a) variation of the rights attaching to or conferred by any of the Share Collateral and (if applicable)
additional shares or (b) any liability on the part of the Investor.
7.3 | Operation: After Triggering Event |
The Investor may, upon and/or after
the occurrence of a Triggering Event, at its discretion (in the name of the Chargor or otherwise and without any further consent or authority
from the Chargor):
| 7.3.1 | exercise (or refrain from exercising) any voting rights in respect of the Charged Property; |
| 7.3.2 | apply all dividends, distributions, interest and other monies arising from all or any of the Charged Property in accordance with Clause
12 (Application of Monies); |
| 7.3.3 | have the right to complete, date and put into effect any documents referred to in Clause 4.2 (Delivery of Documents of Title); |
| 7.3.4 | transfer all or any of the Charged Property into the name of such nominee(s) of the Investor as it shall think fit; and |
| 7.3.5 | exercise (or refrain from exercising) the powers and rights conferred on or exercisable by the legal or beneficial owner of the Charged
Property, including without limitation the right, in relation to any company, corporation or entity whose shares, equity interests or
other securities are included in the Charged Property or any part thereof, to concur or participate in: |
| (a) | the reconstruction, amalgamation, sale or other disposal of such company, corporation or entity or any of its assets or undertaking
(including without limitation the exchange, conversion or reissue of any shares, equity interests or securities as a consequence thereof); |
| (b) | the release, modification or variation of any rights or liabilities attaching to such shares, equity interests or securities; and |
| (c) | the exercise, renunciation or assignment of any right to subscribe for any shares, equity interests
or securities, in each case in such manner and on
such terms as the Investor may think fit, and the proceeds of any such action shall form part of the Charged Property and may be applied
by the Investor in accordance with Clause 12 (Application of Monies). |
The Chargor shall pay when due all
calls or other payments which may be or become due in respect of any of the Charged Property, and in any case of default by the Chargor
in such payment, the Investor may, if it thinks fit, make such payment on behalf of the Chargor in which case any sums paid by the Investor
shall be reimbursed by the Chargor to the Investor on demand and shall carry interest from the date of payment by the Investor until reimbursed
in full at the rate and in accordance with clause 8.4 (Default Interest) of the Note Instrument as if it were an Unpaid Sum thereunder.
| 7.5.1 | The Chargor shall not exercise any of its rights and powers in relation to any of the Charged Property in any manner which, in the
opinion of the Investor, would prejudice the value of, or the ability of the Investor to realise, the security created by this Deed. |
| 7.5.2 | The Investor shall not have any duty to ensure that any dividends, interest or other monies and assets receivable in respect of the
Charged Property are duly and punctually paid, received or collected as and when the same become due and payable or to ensure that the
correct amounts (if any) are paid or received on or in respect of the Charged Property or to ensure the taking up of any (or any offer
of any) stocks, shares, rights, monies or other property paid, distributed, accruing or offered at any time by way of redemption bonus,
rights, preference, or otherwise on or in respect of, any of the Charged Property. |
| 7.5.3 | The Chargor shall not at any time during the Security Period exercise the right to nominate any person other than the Investor or
the nominee(s) of the Investor to enjoy or exercise any right relating to any of the Charged Property. |
8. | ENFORCEMENT OF SECURITY |
Upon and after the occurrence of a
Triggering Event or if the Chargor requests the Investor to exercise any of its powers under this Deed, the security created by or pursuant
to this Deed is immediately enforceable and the Investor may, with prior notice to the Chargor or prior authorisation from any court,
in its absolute discretion:
| 8.1.1 | enforce all or any part of such security (at the times, in the manner and on the terms it thinks fit) and take possession of and hold
or dispose of all or any part of the Charged Property; and |
| 8.1.2 | whether or not it has appointed a Receiver, exercise all or any of the powers, authorities and discretions conferred by this Deed
on any Receiver or otherwise conferred by law on mortgagees and/or Receivers. |
8.2 | No Liability as Mortgagee in Possession |
Neither the Investor nor any Receiver
shall be liable to account as a mortgagee in possession in respect of all or any part of the Charged Property or be liable by reason of
taking any action permitted by this Deed or for any loss upon realisation or for any neglect, default or omission in connection with the
Charged Property to which a mortgagee or a mortgagee in possession might otherwise be liable, unless in each case, directly caused by
its wilful misconduct.
The power of sale or other disposal
conferred on the Investor and on any Receiver by this Deed shall arise (and the Secured Obligations shall be deemed due and payable for
that purpose) on execution of this Deed and shall be exercisable in accordance with Clause 8.1 (Enforcement) and any applicable
law or regulation.
Any restrictions imposed by law on
the power of sale or on the consolidation of security (including without limitation any restriction under paragraph 11 of the Fourth Schedule
to the Conveyancing and Property Ordinance (Chapter 219 of the Laws of Hong Kong) shall be excluded to the fullest extent permitted by
law.
10. | APPOINTMENT OF RECEIVER |
10.1 | Appointment and Removal |
Upon and after the occurrence of a
Triggering Event or if requested to do so by the Chargor, the Investor shall have the right by deed or otherwise (acting through an authorised
officer of the Investor), without prior notice to the Chargor:
| 10.1.1 | appoint one or more persons to be a Receiver over the whole or any part of the Charged Property; |
| 10.1.2 | appoint two or more Receivers of separate parts of the Charged Property; |
| 10.1.3 | remove (so far as it is lawfully able) any Receiver so appointed; and/or |
| 10.1.4 | appoint another person(s) as an additional or replacement Receiver(s). |
10.2 | Capacity of Receivers |
Each person appointed to be a Receiver
pursuant to Clause 10.1 (Appointment and Removal) shall be:
| 10.2.1 | entitled to act individually or together with any other person appointed or substituted as Receiver; |
| 10.2.2 | for all purposes deemed to be the agent of the Chargor which shall be solely responsible for his acts, defaults and liabilities and
for the payment of his remuneration and no Receiver shall at any time act as agent for the Investor; and |
| 10.2.3 | entitled to remuneration for his services at a rate to be fixed by the Investor from time to time. |
If at any time there is more than one
Receiver, each Receiver may separately exercise all of the powers conferred by this Deed and to the exclusion of any other Receiver (unless
the document appointing such Receiver states otherwise).
10.4 | Statutory Powers of Appointment |
The powers of appointment of a Receiver
herein contained shall be in addition to all statutory and other powers of appointment of the Investor under applicable law and such powers
shall remain exercisable from time to time by the Investor in respect of all or any part of the Charged Property.
Every Receiver shall (subject to any
restrictions in the instrument appointing him but notwithstanding any winding-up or dissolution of the Chargor) have and be entitled to
exercise, in relation to the Charged Property (and any assets of the Chargor which, when got in, would be Charged Property) or that part
thereof in respect of which he was appointed, and as varied and extended by the provisions of this Deed (in the name of or on behalf of
the Chargor or in his own name and, in each case, at the cost of the Chargor):
| 11.1.1 | all the powers conferred by the Conveyancing and Property Ordinance (Chapter 219 of the Laws of Hong Kong) on mortgagors and on mortgagees
in possession and on receivers appointed under that Ordinance (as if the Charged Property constituted property that is subject to that
Ordinance and as if such Receiver were appointed under that Ordinance), free from any limitation under paragraph 11 of the Fourth Schedule
to that Ordinance; |
| 11.1.2 | all rights, powers and discretions conferred by this Deed (either expressly or impliedly) or by law on the Chargor; |
| 11.1.3 | all the powers and rights of an absolute owner and power to do or omit to do anything which the Chargor itself could do or omit to
do; and |
| 11.1.4 | the power to do all things (including without limitation bringing or defending proceedings in the name or on behalf of the Chargor)
which seem to that Receiver to be incidental or conducive to (a) any of the functions, powers, authorities or discretions conferred
on or vested in him or (b) the exercise of any Collateral Rights (including without limitation realisation of all or any part of
the Charged Property) or (c) bringing to his hands any assets of the Chargor forming, or which, when got in, would be part of the
Charged Property. |
11.2 | Additional Powers of Receiver |
In addition to and without prejudice
to the generality of the foregoing, every Receiver shall (subject to any limitations or restrictions expressed in the instrument appointing
him but notwithstanding any winding-up or dissolution of the Chargor) have the following powers in relation to the Charged Property (and
any assets of the Chargor which, when got in, would be part of the Charged Property) in respect of which he was appointed (and every reference
in this Clause 11.2 to the “Charged Property” shall be read as a reference to that part of the Charged Property in
respect of which such Receiver was appointed):
power to enter upon, take immediate
possession of, collect and get in the Charged Property including without limitation dividends and other income whether accrued before
or after the date of his appointment;
| 11.2.2 | Proceedings and Claims |
power to bring, prosecute, enforce,
defend and abandon applications, claims, disputes, actions, suits and proceedings in connection with all or any part of the Charged Property
or this Deed in the name of the Chargor or in his own name and to submit to arbitration, negotiate, compromise and settle any such applications,
claims, disputes, actions, suits or proceedings;
power to carry on and manage, or concur
in the carrying on and management of or to appoint a manager of, the whole or any part of the Charged Property or any business relating
thereto in such manner as he shall in his absolute discretion think fit;
power to appoint, hire and employ officers,
employees, contractors, agents, advisors and others for any of the purposes of this Deed and/or to guard or protect the Charged Property
upon terms as to remuneration or otherwise as he may think fit and to discharge any such persons and any such persons appointed, hired
or employed by the Chargor;
power to give a valid receipt for any
monies and execute any assurance or thing which may be proper or desirable for realising any Charged Property;
| 11.2.6 | Deal with Charged Property |
power, in relation to the Charged
Property and each and every part thereof, to sell, transfer, convey, dispose of or concur in any of the foregoing by the Chargor or
any other receiver or manager of the Chargor (including without limitation to or in relation to the Investor) in such manner and
generally on such terms as he thinks fit , and the consideration for any such transaction may consist of cash, debentures or other
obligations, shares, stock or other valuable consideration and any such consideration may be payable in a lump sum or by instalments
spread over any period which the Receiver thinks fit;
power to purchase, lease, hire or otherwise
acquire any assets or rights of any description which he shall in his absolute discretion consider necessary or desirable for the carrying
on, improvement or realisation of the whole or any part of the Charged Property or otherwise for the benefit of the whole or any part
of the Charged Property;
power to promote, procure the formation
or otherwise acquire the share capital of, any body corporate with a view to such body corporate becoming a subsidiary of the Chargor
or otherwise and purchasing, leasing or otherwise acquiring an interest in the whole or any part of the Charged Property or carrying on
any business in succession to the Chargor or any subsidiary of the Chargor;
power to delegate his powers in
accordance with this Deed; 11.2.10Insurance power to effect, maintain or renew indemnity and other insurances and to obtain bonds
and performance guarantees and do any other act which the Chargor might do in the ordinary conduct of its business to protect or
improve any Charged Property;
power to raise or borrow money from
the Investor or any other person to rank either in priority to the security constituted by this Deed or any part of it or otherwise and
with or without a mortgage or charge on the Charged Property or any part of it on such terms as he shall in his absolute discretion think
fit (and no person lending such money shall be concerned to see or enquire as to the propriety or purpose of the exercise of such power
or the application of money so raised or borrowed);
| 11.2.12 | Redemption of Security |
power to redeem, discharge or compromise
any security whether or not having priority to the security constituted by this Deed or any part of it;
| 11.2.13 | Covenants, Guarantees and Indemnities |
power to enter into bonds,
covenants, guarantees, commitments, indemnities and other obligations or liabilities as he shall think fit, to make all payments
needed to effect, maintain or satisfy such obligations or liabilities and to use the company seal of the Chargor;
power to appoint an attorney or solicitor
or accountant or other professionally qualified person to assist him in the performance of his functions;
power to make any payment which is
necessary or incidental to the performance of his functions; and
| 11.2.16 | Exercise of Powers in Chargor’s Name |
power to exercise any or all of the
above powers on behalf of and in the name of the Chargor (notwithstanding any winding-up or dissolution of the Chargor) or on his own
behalf.
In making any sale or other disposal
of all or any part of the Charged Property or any acquisition in the exercise of their respective powers (including without limitation
a disposal by a Receiver to any subsidiary of the Chargor or other body corporate as is referred to in Clause 11.2.8 (New Subsidiary)),
a Receiver or the Investor may accept or dispose of as, and by way of consideration for, such sale or other disposal or acquisition, cash,
shares, loan capital or other obligations, including without limitation consideration fluctuating according to or dependent upon profit
or turnover and consideration the amount whereof is to be determined by a third party. Any such consideration may, if thought expedient
by the Receiver or the Investor, be nil or may be payable or receivable in a lump sum or by instalments. Any contract for any such sale,
disposal or acquisition by the Receiver or the Investor may contain conditions excluding or restricting the personal liability of the
Receiver or the Investor.
11.4 | Relationship with Investor |
To the fullest extent allowed by law,
any right, power or discretion conferred by this Deed (either expressly or impliedly) or by law on a Receiver may after the Security conferred
or intended to be conferred on the Investor by or pursuant to this Deed becomes enforceable be exercised by the Investor in relation to
any Charged Property without first appointing a Receiver and notwithstanding the appointment of a Receiver.
Save as otherwise expressly provided
in this Deed, all moneys and/or non-cash recoveries and/or proceeds received or recovered by the Investor or any Receiver pursuant to
this Deed or the powers conferred by it shall (subject to the claims of any person having prior rights thereto and subject to Clause 12.2
(Suspense Account)) be applied:
| 12.1.1 | first, in the payment of the costs, charges and expenses incurred and payments made by any Receiver, the payment of his remuneration
and the discharge of any liabilities incurred by such Receiver in, or incidental to, the exercise of any of his powers; |
| 12.1.2 | second, be applied by the Investor as the Investor shall think fit in discharge of the Secured Obligations; and |
| 12.1.3 | third, following such payments, the remaining balance (if any) shall be paid to the Chargor for its rights and interests or such other
person as may be entitled thereto. |
This Clause does not prejudice the
right of the Investor to recover from the Chargor any shortfall between (i) any Unpaid Sum; and (ii) the moneys and/or non-cash
recoveries and/or proceeds received or recovered under this Clause.
All monies received, recovered or realised
under this Deed by the Investor or any Receiver or the powers conferred by it (including the proceeds of any conversion of currency) may
in its discretion be credited to and held in any suspense or impersonal account pending their application from time to time in or towards
the discharge of any of the Secured Obligations in accordance with Clause 12.1 (Order of Application).
12.3 | Application by Chargor |
Any application under this Clause 12
shall override any application by the Chargor.
13. | RECEIPT AND PROTECTION OF PURCHASERS |
13.1 | Receipt and Consideration |
The receipt of the Investor or any
Receiver shall be conclusive discharge to a purchaser of any part of the Charged Property from the Investor or such Receiver and in making
any sale or disposal of any part of the Charged Property or making any acquisition, the Investor or any Receiver may do so for such consideration,
in such manner and on such terms as it thinks fit.
13.2 | Protection of Purchasers |
No purchaser or other person dealing
with the Investor or any Receiver shall be bound to inquire whether the right of the Investor or such Receiver to exercise any of its
powers has arisen or become exercisable or be concerned with any propriety or regularity on the part of the Investor or such Receiver
in such dealings. The protection given to purchasers from a mortgagee in sections 52 and 55 of the Conveyancing and Property Ordinance
(Chapter 219 of the Laws of Hong Kong) shall apply mutatis mutandis to purchaser(s) and other person(s) dealing with
the Investor or any Receiver.
14.1 | Appointment and Powers |
The Chargor by way of security irrevocably
(within the meaning of Section 4 of the Powers of Attorney Ordinance (Chapter 31 of the Laws of Hong Kong) appoints the Investor
and any Receiver severally to be its attorney and in its name, on its behalf to execute, deliver and perfect all documents and do all
things which the Investor or such Receiver may consider to be necessary for:
| 14.1.1 | carrying out any obligation imposed on the Chargor by this Deed or any other agreement binding on the Chargor to which the Investor
is party (including without limitation the execution and delivery of any deeds, charges, assignments or other security and any transfers
of the Charged Property or any part thereof); and |
| 14.1.2 | enabling the Investor and any Receiver to exercise, or delegate the exercise of, any of the rights, powers and authorities conferred
on them by or pursuant to this Deed or by law (including, without limitation, upon or after the occurrence of a Triggering Event, the
exercise of any right of a legal or beneficial owner of the Charged Property or any part thereof). |
The Chargor shall ratify and confirm
all things done and all documents executed by any attorney in the lawful exercise or purported exercise of all or any of its powers pursuant
to this Deed.
The Chargor represents and warrants
to the Investor that:
| 15.1.1 | the Chargor is aged 18 or above and of full mental capacity; |
| 15.1.2 | subject to Legal Reservations, each of the obligations expressed to be assumed by him in this Deed are legal, valid, binding and enforceable
obligation, and this Deed creates the security interests which it purports to create and such security interests are valid and effective; |
| 15.1.3 | the entry into and performance by him of, and the transactions contemplated by, this Deed do not and will not: |
| (a) | conflict with any law or regulation applicable to him; |
| (b) | conflict with any agreement or instrument binding upon him or any of his assets; or |
| (c) | result in the existence of or oblige him to create any security over all or any of his assets (other than the security constituted
pursuant to this Deed); |
| 15.1.4 | he has the power to enter into, perform and deliver, and has taken all necessary actions to authorise his entry into, performance
and delivery of, this Deed; |
| 15.1.5 | no limit on his powers will be exceeded as a result of the grant of security contemplated by this Deed; |
| 15.1.6 | all Authorisation required or desirable: |
| (a) | to enable him lawfully to enter into, exercise its rights and comply with his obligations in this Deed; |
| (b) | to make this Deed admissible in evidence in Hong Kong; and/or |
| (c) | to enable him to create the security expressed to be created by him pursuant to this Deed and to ensure that such security has the
priority and ranking it is expressed to have, |
have been obtained or effected and are in full
force and effect;
| 15.1.7 | subject to Legal Reservations, the choice of the laws of Hong Kong as the governing law of this Deed will be recognised and enforced
in the courts of Hong Kong; |
| 15.1.8 | subject to Legal Reservations, any judgment obtained in the courts of Hong Kong in relation to this Deed will be recognised and enforced
in Hong Kong; |
| 15.1.9 | save and except for those as set out in Clause 4 (Perfection of Security) herein, under the law of the British Virgin Islands,
it is not necessary that this Deed be filed, recorded or enrolled with any court or other authority in that jurisdiction or that any stamp,
registration or similar tax be paid on or in relation to this Deed; |
| 15.1.10 | all consents necessary to enable any asset that is expressed to be subject to any security under this Deed to be the subject of effective
security under this Deed have been obtained and are in full force and effect; |
| 15.1.11 | he is, and will be, the sole and absolute beneficial owner of the Charged Property free from Security Interest (other than the security
constituted pursuant to this Deed) and this Deed creates in favour of the Investor first ranking Security Interest over the Charged Property; |
| 15.1.12 | the Shares and, to the extent applicable, the other Share Collateral, are duly authorised, validly issued, fully paid and not subject
to any option to purchase or similar right and the particulars of the Shares set out in Schedule 1 (Particulars of Shares) are
accurate and the Shares described therein constitute 100% of the issued shares of the Company; |
| 15.1.13 | he has not sold or otherwise disposed of, or created, granted or permitted to subsist any security over, all or any of his right,
title and interest in the Charged Property (other than the security constituted pursuant to this Deed and other than as expressly permitted
under this Deed); |
| 15.1.14 | the Share Collateral has been validly issued and allotted by the Company and are fully paid up and there are no monies or liabilities
payable or outstanding by the Chargor in relation to any of the Shares; |
| (a) | no petition has been presented, and no order has been made, for the bankruptcy of the Chargor or for the appointment of a bankruptcy
trustee to the Chargor; |
| (b) | the Chargor has not proposed or agreed to a composition, compromise, assignment or arrangement with any of his creditors; and |
| (c) | the Chargor is not subject to or threatened by any other procedures or steps which are analogous to those set out above. |
| 15.1.16 | no Event of Default is continuing or might reasonably be expected to result from the entry into, the performance of, or any transaction
contemplated by this Deed; |
| 15.1.17 | no other event or circumstance is outstanding which constitutes (or, with the expiry of a grace period, the giving of notice, the
making of any determination or any combination of any of the foregoing, would constitute) a default or termination event (however described)
under any other agreement or instrument which is binding on him or to which his assets are subject; and |
| 15.1.18 | no litigation, arbitration, investigation or administrative proceedings of or before any court, arbitral body or agency been started
or threatened, or is pending, against him or his assets which may have a Material Adverse Effect. |
Each of the representations and warranties
above shall be deemed to be repeated by the Chargor on each day of the Security Period by reference to the facts and circumstances existing
at the date on which such representation or warranty is deemed to be made or repeated.
|
16.1 | The Chargor hereby covenants during the Security Period it will remain the legal and the beneficial owner of the Charged Property
(subject only to the security created by this Deed) and that it shall not: |
| 16.1.1 | create or permit to subsist any security (other than that created by this Deed) on or in respect of the whole of any part of the Charged
Property or any of its interest therein; or |
| 16.1.2 | sell,
lease, assign, lend, dispose of, transfer or otherwise deal with any of its interest in the Charged Property (other than pursuant to
this Deed) and in any such case, without the prior written consent of the Investor; or |
| 16.1.3 | do, or permit to be done, any act or thing that would or might depreciate, jeopardise or otherwise prejudice the security held by
the Investor, or diminish the value of any of the Charged Property
or the effectiveness of the security created by this Deed. The Chargor shall, promptly on becoming aware, notify the Investor in writing
of any representation or warranty set out in Clause 15.1 (Representations) which is incorrect or misleading in any respect when
made or deemed to be repeated and any breach of any covenant set out in this Deed. |
| 16.2 | The Chargor shall deliver to the Investor immediately upon receipt by the Chargor copies of all notices of general meetings, proposed
shareholder resolutions of the Company, financial statements and all other materials distributed to, or requiring action by, shareholders
of the Company from time to time and all other materials and information distributed by the Company to, or requiring action by, the shareholders
of the Company and such other information concerning the Company (that the Chargor as a shareholder of the Company would have known) as
the Investor shall from time to time request. |
| 16.3 | The Chargor shall remain liable to perform all the obligations assumed by it in relation to the Charged Property and the Investor
shall be under no obligation of any kind whatsoever in respect thereof or be under any liability whatsoever in the event of any failure
by the Chargor to perform its obligations in respect thereof. |
| 16.4 | The Chargor shall not take, or allow the taking of, any action on its behalf which may result in the rights attaching to, or conferred
by, all or any of the Charged Property being altered. |
| 16.5 | The Chargor shall not waive, release, settle, compromise, abandon or set-off any claim or the liability of any person in respect of
the Related Rights, or do or omit to do any other act or thing whereby the recovery in full of the Related Rights as and when they become
payable may be impeded. |
| 16.6 | The Chargor shall not, and shall procure that there shall not, effect any sale, transfer or disposal of any Shares or Charged Property
or any interest therein, without the prior written consent of the Investor. |
| 16.7 | If the Chargor sells, assigns, or otherwise disposes of or parts with possession of or deals with or otherwise creates an interest
in (a “Disposal”) any Charged Property in breach of Clause 16.6, then, despite that Disposal: |
| 16.7.1 | the Investor is not to be taken to have authorised the Disposal; |
| 16.7.2 | the Investor is not to be taken to have agreed that the Disposal would extinguish any Security Interest the Investor holds in that
Charged Property; |
| 16.7.3 | to the extent the law allows, the Security Interest continues in that Charged Property; and |
| 16.7.4 | the Chargor must give the Investor prompt notice of the Disposal and any information requested by the Investor in relation to the
other person or persons party to the Disposal to enable the Investor to perfect the Security Interest as against that person or those
persons. |
|
16.8 | The Chargor shall promptly: |
| (a) | obtain, comply with and do all that is necessary to maintain in full force and effect; and |
| (b) | supply certified copies to the Investor of, |
any authorisation required under any
law or regulation of its jurisdiction of incorporation to enable it to perform its obligations under this Deed and to ensure the legality,
validity, enforceability or admissibility in evidence in its jurisdiction of incorporation of this Deed.
17. | EFFECTIVENESS OF SECURITY |
The security created by or pursuant
to this Deed shall remain in full force and effect as a continuing security for the Secured Obligations unless and until discharged
by the Investor. No part of the security from time to time intended to be constituted by this Deed will be considered satisfied or discharged
by any intermediate payment, discharge or satisfaction of the whole or any part of the Secured Obligations.
The security created by this Deed and
the Collateral Rights shall be cumulative, in addition to and independent of every other security which the Investor may at any time hold
for any or all of the Secured Obligations or any rights, powers and remedies provided by law. No prior security held by the Investor over
the whole or any part of the Charged Property shall merge into the security constituted by this Deed. The foregoing applies notwithstanding
any receipt, release or discharge endorsed or given in respect of or under any such other Security.
17.3 | Chargor’s Obligations |
None of the obligations of the Chargor
under this Deed or the Collateral Rights shall be affected by an act, omission, matter, thing or event which, but for this Clause 17.3,
would reduce, release or prejudice any of its obligations under this Deed, any of the obligations of the Chargor under this Deed or the
Collateral Rights including (without limitation and whether or not known to it or the Investor):
| 17.3.1 | the winding-up, dissolution, administration, reorganisation, death, insolvency, incapacity or bankruptcy of the Chargor or any other
person or any change in its status, function, control or ownership; |
| 17.3.2 | any of the obligations of the Chargor or any other person under any Transaction Document, or under any other security relating to
any Transaction Document, being or becoming illegal, invalid, unenforceable or ineffective in any respect; |
| 17.3.3 | any time, waiver or consent granted to, or composition with, the Chargor or any other person; |
| 17.3.4 | the release of the Chargor or any other person under the terms of any composition or arrangement with any creditor of the Chargor
or any other person; |
| 17.3.5 | the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights
against, or security over assets of, the Chargor or other person or any non-presentation or non-observance of any formality or other requirement
in respect of any instrument or any failure to realise the full value of any security; |
| 17.3.6 | any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of the Chargor
or any other person; |
| 17.3.7 | any amendment, novation, supplement, extension (whether of maturity or otherwise) or restatement (in each case however fundamental
and of whatsoever nature, and whether or not more onerous) or replacement of a Transaction Document or any other document or security
or of the Secured Obligations; |
| 17.3.8 | any unenforceability, illegality or invalidity of any obligation of any person under any Transaction Document or any other document
or security; |
| 17.3.9 | any insolvency or similar proceedings; |
| 17.3.10 | the existence of any claim, set-off right or other right that the Chargor may have at any time against the Investor or any other person;
or |
| 17.3.11 | any law, regulation or decree or order of any jurisdiction affecting the Chargor. |
Without prejudice to the generality
of Clause 17.3 (Chargor’s Obligations), the Chargor expressly confirms that it intends that the security created under this
Deed, and the Collateral Rights, shall extend from time to time to any (however fundamental and of whatsoever nature, and whether or not
more onerous) variation, increase, extension or addition of or to any of the Transaction Documents or any other security relating to any
Transaction Document.
No failure on the part of the Investor
to exercise, or any delay on its part in exercising, any Collateral Right shall operate as a waiver thereof or constitute an election
to affirm this Deed. No election by the Investor or any Receiver to affirm this Deed or to waive any Collateral Rights shall be effective
unless it is in writing. The Collateral Rights are cumulative and not exclusive of the rights of the Investor or any Receiver under the
general law, nor shall any single or partial exercise of any Collateral Right preclude any further or other exercise of that or any other
Collateral Right.
The Chargor waives any right it
may have of first requiring the Investor (or any trustee or agent on its behalf) to proceed against or enforce any other right or
security or claim payment from any person or file any proof or claim in any insolvency, administration, winding-up or liquidation
proceedings relative to any other person before claiming from the Chargor under this Deed.
None of the Investor, its nominee(s) or
any Receiver shall be liable by reason of (a) taking any action permitted by this Deed or (b) any neglect or default in connection
with all or any part of the Charged Property or (c) taking possession of or realising all or any part of the Charged Property, except
in the case of wilful default upon its part (as finally judicially determined).
If, at any time, any provision of this
Deed is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity
or enforceability of the remaining provisions of this Deed under such laws nor of such provision under the laws of any other jurisdiction
shall in any way be affected or impaired thereby and, if any part of the security intended to be created by or pursuant to this Deed is
invalid, unenforceable or ineffective for any reason, that shall not affect or impair any other part of that security.
The Investor shall not be obliged to
make any demand of or enforce any rights or claim against the Chargor or any other person, to take any action or obtain judgment in any
court against the Chargor or any other person or to make or file any proof or claim in a liquidation, bankruptcy or insolvency of the
Chargor or any other person or to enforce or seek to enforce any other security in respect of any or all of the Secured Obligations before
exercising any Collateral Right.
Until the time when (i) all Secured
Obligations have been irrevocably discharged in full and (ii) all amounts which may be or become payable by the Chargor and the Chargor
under or in connection with the Transaction Documents have been irrevocably paid in full, the Chargor will not (unless the Investor otherwise
directs) exercise any rights which it may have by reason of performance by it of its obligations under this Deed:
| 17.10.1 | to be indemnified by the Chargor; |
| 17.10.2 | to claim any contribution from any guarantor of the Chargor’s obligations under any or all of the Transaction Documents; and/or |
| 17.10.3 | to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Investor under the Transaction
Documents or of any other guarantee or security taken pursuant to, or in connection with, the Transaction Documents by the Investor; |
| 17.10.4 | to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect
of which the Chargor has given a guarantee, security, undertaking or indemnity under any Transaction Document; |
| 17.10.5 | to exercise any right of set-off against any Obligor; and/or |
| 17.10.6 | to claim or prove as a creditor of any Obligor in competition with the Investor. |
If the Chargor shall receive any benefit, payment or distribution
in relation to any such right it shall hold that benefit, payment or distribution (or so much of it as may be necessary to enable all
Secured Obligations to be paid in full) on trust for the Investor, and shall promptly pay or transfer the same to the Chargor (or as the
Investor may direct) for application in accordance with Clause 12.1 (Order of Application).
17.11 | Settlement conditional |
Any settlement, discharge or release
hereunder in relation to the Chargor or all or any part of the Charged Property shall be conditional upon no security or payment by the
Chargor to the Investor being avoided or reduced by virtue of any bankruptcy, insolvency, liquidation or similar laws of general application
or any similar event or for any other reason and shall in the event of any such avoidance or reduction or similar event be void, and the
liability of the Chargor under this Deed and the Security Interest created by this Deed shall continue as if such payment, settlement,
discharge or release had not occurred.
18.1 | Redemption of Security |
Upon the time when (i) all Secured
Obligations have been irrevocably discharged in full, and (ii) all amounts which may be or become payable by the Chargor under or
in connection with the Transaction Documents have been irrevocably paid in full, the Investor shall, at the request (with reasonable notice)
and cost of the Chargor, as soon as reasonably practicable, release and cancel the security constituted by this Deed on the relevant Share
Collateral and procure the reassignment to the Chargor of the property and assets assigned to the Investor and the return to the Chargor
of the certificates and documents delivered to the Investor pursuant to this Deed (to the extent not otherwise sold, assigned or otherwise
disposed of or applied in accordance with this Deed), in each case subject to Clauses 18.2 (Avoidance of Payments) and 17.11 (Settlement
conditional) and without recourse to, or any representation or warranty by, the Investor or any of its nominees.
18.2 | Avoidance of Payments |
If the Investor reasonably considers
that any amount paid or credited to or recovered by the Investor from the Chargor or the Guarantor is capable of being avoided or reduced
by virtue of any bankruptcy, insolvency, liquidation or similar laws, the liability of the Chargor under this Deed and the security constituted
by this Deed shall continue and such amount shall not be considered to have been irrevocably paid.
19. | SUBSEQUENT AND PRIOR SECURITY INTERESTS |
19.1 | Subsequent security interests |
If the Investor (acting in its
capacity as chargee or otherwise) at any time receives or is deemed to have received notice of any subsequent security or other
interest affecting all or any part of the Charged Property or any assignment or transfer of the Charged Property which is prohibited
by the terms of this Deed or the Transaction Documents, all payments thereafter by or on behalf of the Chargor to the Investor shall
be treated as having been credited to a new account of the Investor and not as having been applied in reduction of the Secured
Obligations as at the time when (or at any time after) the Investor received such notice of such subsequent security or other
interest or such assignment or transfer.
19.2 | Prior security interests |
In the event of any action, proceeding
or step being taken to exercise any powers or remedies conferred by any prior ranking security or upon the exercise by the Investor or
any Receiver of any power of sale under this Deed or any Collateral Right, the Investor may redeem any prior ranking security over or
affecting any Charged Property or procure the transfer of any such prior ranking security to itself. The Investor may settle and agree
the accounts of the beneficiary of any such prior security and any accounts so settled and agreed will be conclusive and binding on the
Chargor. All principal, interest, costs, charges, expenses and/or other amounts relating to and/or incidental to any such redemption or
transfer shall be paid by the Chargor to the Investor upon demand.
20. | CURRENCY CONVERSION AND INDEMNITY |
For the purpose of or pending the discharge
of any of the Secured Obligations the Investor may convert any money received, recovered or realised or subject to application by it under
this Deed from one currency to another, as the Investor may think fit, and any such conversion shall be effected at the Investor’s
spot rate of exchange (or, if no such spot rate of exchange is quoted by the Investor, such other rate of exchange as may be available
to the Investor) for the time being for obtaining such other currency with such first-mentioned currency.
If any sum (a “Sum”)
owing by the Chargor under this Deed or any order or judgment given or made in relation to this Deed has to be converted from the currency
(the “First Currency”) in which such Sum is payable into another currency (the “Second Currency”)
for the purpose of:
| 20.2.1 | making or filing a claim or proof against the Chargor; |
| 20.2.2 | obtaining an order or judgment in any court or other tribunal; |
| 20.2.3 | enforcing any order or judgment given or made in relation to this Deed; or |
| 20.2.4 | applying the Sum in satisfaction of any of the Secured Obligations, |
the Chargor shall indemnify the
Investor from and against any loss suffered or incurred as a result of any discrepancy between (a) the rate of exchange used
for such purpose to convert such Sum from the First Currency into the Second Currency and (b) the rate or rates of exchange
available to the Investor at the time of such receipt or recovery of such Sum.
21. | COSTS, EXPENSES AND INDEMNITY |
The Chargor shall, on demand of the
Investor, reimburse the Investor on a full indemnity basis for all costs and expenses (including legal fees and any value added tax) incurred
by the Investor in connection with (a) the execution of this Deed or otherwise in relation to this Deed, including but not limited
to costs and expenses relating to any amendment of this Deed, (b) the perfection or enforcement of the security constituted by this
Deed, (c) the exercise of any Collateral Right, together with interest from the date such costs and expenses were incurred to the
date of reimbursement of the same by the Chargor, and (d) the release of the security constituted by this Deed.
The Chargor shall pay all stamp, registration
and other Taxation to which this Deed, the security contemplated in this Deed and/or any judgment given in connection with this Deed is,
or at any time may be, subject and shall, from time to time, indemnify the Investor on demand against any liabilities, costs, claims and/or
expenses resulting from any failure to pay or delay in paying any such Tax.
The Chargor shall, notwithstanding
any release or discharge of all or any part of the security constituted by this Deed, indemnify the Investor, its agents, attorneys and
any Receiver against any action, proceeding, claims, losses, liabilities and costs which it may sustain as a consequence of any breach
by the Chargor of the provisions of this Deed, the exercise or purported exercise of any of the rights and powers conferred on any of
them by this Deed or otherwise relating to the Charged Property or any part thereof.
22. | PAYMENTS FREE OF DEDUCTION |
All payments to be made to the Investor
under this Deed shall be made free and clear of and without deduction for or on account of any Taxation unless the Chargor is required
to make such payment subject to the deduction or withholding of any Taxation, in which case the sum payable by the Chargor in respect
of which such deduction or withholding is required to be made shall be increased to the extent necessary to ensure that, after the making
of such deduction or withholding, the person on account of whose liability to tax such deduction or withholding has been made receives
and retains (free from any liability in respect of any such deduction or withholding) a net sum equal to the sum which it would have received
and so retained had no such deduction or withholding been made or required to be made.
22.2 | No set-off or counterclaim |
All payments to be made by the Chargor
under this Deed shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.
23. | DISCRETION AND DELEGATION |
Any liberty or power which may be exercised
or any determination which may be made under this Deed by the Investor or any Receiver may, subject to the applicable terms and conditions
of, as the case may be, the Transaction Documents, be exercised or made in its absolute and unfettered discretion without any obligation
to give reasons.
| (a) | Each of the Investor and any Receiver shall have full power to delegate (either generally or specifically) the powers, authorities
and discretions conferred on it by this Deed (including without limitation the power of attorney under Clause 14 (Power of Attorney))
on such terms and conditions as it shall see fit which delegation shall not preclude any subsequent exercise, any subsequent delegation
or any revocation of such power, authority or discretion by the Investor or any Receiver. |
| (b) | Neither the Investor nor any Receiver will be in any way liable or responsible to the Chargor for any loss or liability arising from
any act, default, omission, neglect or misconduct on the part of any delegate or sub-delegate. |
In acting as chargee, the Investor
shall have the benefit of all indemnities, protections and rights on its part set out in the Transaction Documents, as if set out fully
herein.
The Investor may set off any matured
obligation due from the Chargor under any or all of the Transaction Documents (to the extent beneficially owned by the Investor) against
any matured obligation owed by the Investor to the Chargor, regardless of the place of payment, booking branch or currency of either obligation.
If such obligations are in different currencies, the Investor may convert either obligation at a market rate of exchange in its usual
course of business for the purpose of such set-off.
This Deed shall be binding upon
and enure to the benefit of each party hereto and its and/or any subsequent successors and permitted assigns and transferees.
Without prejudice to the foregoing, this Deed shall remain in effect despite any amalgamation or merger (however effected) relating
to the Investor; and references to the Investor herein shall be deemed to include any person who, under the laws of its jurisdiction
of incorporation or domicile, has assumed the rights and obligations of the Investor under this Deed or to which, under such laws,
those rights and obligations have been transferred.
25.2 | No Assignment or Transfer by Chargor |
The Chargor may not assign or transfer
any or all of its rights (if any) and/or obligations under this Deed.
25.3 | Assignment or Transfer by Investor |
The Investor may assign or transfer
any or all of its rights (if any) and/or obligations under this Deed.
The Investor shall be entitled to disclose
such information concerning the Chargor or any other person and this Deed as the Investor considers appropriate to any actual or proposed
direct or indirect successor or to any person to whom information may be required to be disclosed by applicable law.
26. | AMENDMENTS AND WAIVERS |
26.1 | Any provision of this Deed may be amended or waived only by agreement in writing between the Chargor and the Investor. No third party’s
signature is required for any amendment. |
26.2 | No failure on the part of the Investor to exercise, or delay on its part in exercising, any or all of its rights hereunder shall operate
as a waiver thereof or constitute an election to affirm this Deed. No election to affirm this Deed on the part of the Investor shall be
effective unless it is in writing. No single or partial exercise of any such right or remedy shall preclude any further or other exercise
of such or any other right or remedy. |
The perpetuity period under the rule against
perpetuities, if applicable to this Deed, shall be the period of 80 years from the date of the Subscription Agreement.
28.1 | Any notice, claim or demand in connection with this Deed shall be in writing, in English language, and marked “IMPORTANT LEGAL
NOTICE” (each a “Notice”), and shall be delivered or sent to the recipient at its email address, facsimile number
or address (where applicable) listed below, or any other email address, facsimile number or address notified to the sender by the recipient
for the purposes of this Instrument: |
|
To the Chargor: |
CHEN SHENG (陈升)
Address: 10 Jiuxianqiao East Road, Chaoyang District, Beijing
100016
Email: Josh.Chen@vnet.com |
|
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Facsimile: +86 10 8456 4234 |
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To
the Investor: |
SHINING RICH HOLDINGS LIMITED |
|
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耀富控股有限公司 |
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Email: workforpapper@163.com |
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Attention: Fang Li / Tong Lin |
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| 28.2 | If any Investor that is a natural Person dies, until the Party giving a Notice has received notice in writing of the grant of probate
of his will or letters of administration of his estate (or equivalent), any Notice so given shall be as effectual as if he was still living. |
| 28.3 | Without prejudice to Clause 28.2, any Notice shall be deemed to have been served: (a) if served by hand, when delivered and proof
of delivery is obtained by the delivery party, (b) if served by overnight courier, on the next Business Day, or (c) if sent
by facsimile or email, only when received in legible form by at least one of the relevant facsimile number or email addresses (as applicable)
of the person(s) to whom the communication is made. Any Notice received on a Sunday or public holiday shall be deemed to be received
on the next Business Day. |
This Deed may be executed in any number of counterparts,
all of which taken together shall constitute one and the same instrument.
|
30.1 | A Person who is not a Party has no right under the Contracts (Rights of Third Parties) Ordinance (Chapter 623 of the Laws of Hong
Kong) to enforce or to enjoy the benefit of any term of this Deed. |
|
30.2 | Notwithstanding any term of this Deed, the consent of any person who is not a Party is not required to rescind or vary this Deed at
any time. |
This Deed shall be governed by and shall be construed in
accordance with Hong Kong law.
|
32.1 | With respect to any dispute, controversy or claim arising out of or relating to this Deed, including the existence, validity, performance,
interpretation, construction, breach or termination thereof or the consequences of its nullity (each a “Dispute”),
the Parties hereby irrevocably submit to the non-exclusive jurisdiction of the Hong Kong courts. |
|
32.2 | The Chargor irrevocably waives, to the extent permitted by applicable law, with respect to itself and its revenues and assets (irrespective
of their use or intended use), all immunity on the grounds of sovereignty or other similar grounds from: |
| 32.2.2 | jurisdiction of any court or arbitral tribunal; |
| 32.2.3 | relief by way of injunction or order for specific performance or recovery of property; |
| 32.2.4 | attachment of its assets (whether before or after judgment); and |
| 32.2.5 | execution or enforcement of any judgment to which it or its revenues or assets might otherwise be entitled in any proceedings in the
courts or arbitral tribunal of any jurisdiction (and irrevocably agrees, to the extent permitted by applicable law, that it will not claim
any immunity in any such proceedings). |
|
32.3 | This Clause 32 (Jurisdiction) is for the benefit of the Investor only. As a result and notwithstanding Clause 32.1, nothing
herein shall prevent the Investor from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed
by law the Investor may take concurrent proceedings in any number of jurisdictions. |
| 33.1 | Without prejudice to any other mode of service allowed under any relevant law, the Chargor irrevocably appoints VNET Group Limited
of 37/F., Tower 1 Metroplaza, Hing Fong Road, Kwai Fong, Hong Kong as its agent under this Deed for service of process in any proceedings
before the Hong Kong courts in connection with this Deed. |
| 33.2 | If any person appointed as process agent under this Clause is unable for any reason to so act, the Chargor must immediately (and in
any event within five (5) days of the event taking place) appoint another agent on terms acceptable to the Investor. Failing this,
the Investor may appoint another process agent for this purpose. |
| 33.3 | The Chargor agrees that failure by a process agent to notify it of any process will not invalidate the relevant proceedings. |
| 33.4 | This Clause does not affect any other method of service allowed by law. |
SCHEDULE 1
PARTICULARS OF SHARES
Legal and Beneficial owner |
Issued shares of the Company |
|
|
CHEN Sheng (陈升) |
1,000 ordinary shares |
SCHEDULE 2
FORMS OF INSTRUMENT OF TRANSFER
in consideration of the Sum of |
|
|
|
paid to me/us by (name in full) |
|
(hereinafter
called “the said Transferee”) do hereby transfer to the said Transferee the |
|
__________________________________________share(s) numbered ________________________________________________________________ |
standing in my/our name in the Register of |
|
to hold unto the said Transferee or (his/her Executors or Administrators/its Assigns), subject to the several conditions upon which I/we hold the same at the time of execution hereof. And I/we the said Transferee do hereby agree to take the said shares subject to the same conditions. |
Dated day
of.
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(Signature of Transferor) |
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(Signature of Transferee) |
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SCHEDULE 3
FORM OF IRREVOCABLE PROXY AND POWER OF
ATTORNEY
SUNRISE CORPORATE HOLDING LTD.
(the “Company”)
The undersigned, CHEN SHENG ( 陈
升 ), as a shareholder of the Company, hereby makes, constitutes and appoints the following person:
[to be left blank]
(the “Attorney”)
as the true and lawful attorney and proxy of the undersigned with full power to appoint a nominee or nominees to act hereunder from time
to time and to vote any existing or further shares in the Company which may have been or may from time to time be issued and/or registered
in our name (the “Shares”) at all general meetings of shareholders or stockholders of the Company with the same force
and effect as the undersigned might or could do and to requisition and convene a meeting or meetings of the shareholders of the Company
for the purpose of appointing or confirming the appointment of new directors of the Company and/or such other matters as may in the opinion
of the Attorney be necessary or desirable for the purpose of implementing the Share Charge referred to below and the undersigned hereby
ratifies and confirms all that the said Attorney or its nominee or nominees shall do or cause to be done by virtue hereof.
The Shares have been charged to the Attorney
pursuant to a share charge dated _______________________________2024 between CHEN SHENG ( 陈
升 ) as Chargor and SHINING RICH HOLDINGS LIMITED 耀富控股有限公司 as
Investor (the “Share Charge”).
Notwithstanding anything contained
in this instrument, the power of attorney and proxy shall only be exercisable upon and after the occurrence of a Triggering Event (as
defined in the Share Charge).
This power and proxy is given to secure
a proprietary interest of the donee of the power and is irrevocable and shall remain irrevocable as long as the Share Charge is in force.
IN WITNESS whereof this instrument has
been duly executed this _____ day of __________2024 as a deed.
(The remainder of this page is intentionally left
blank)
SIGNED SEALED AND DELIVERED
by |
)
) |
![](https://www.sec.gov/Archives/edgar/data/1541680/000110465924078193/tm2418852d1_ex99-31img001.jpg)
|
CHEN SHENG (陈升) |
)
)
)
) |
in the presence of: |
) |
CHEN SHENG (陈升) |
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Signature of witness |
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Name of witness: |
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Address of witness: |
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SCHEDULE 4
FORM OF LETTER OF RESIGNATION
To: | The Board of Directors |
| Sunrise Corporate Holding Ltd. (the
“Company”) |
| |
Date: | |
|
Dear Sirs,
Resignation
I hereby tender my unconditional and irrevocable resignation
as a director of the Company with effect from the date of this letter. I confirm that:
1. | I (in my capacity as a director of the Company) have no claims whatsoever against the Company or any of its subsidiaries or associated
companies (if any) on any account (whether for loss of office, for accrued remuneration or for fees or otherwise howsoever); and |
2. | there is no outstanding agreement or arrangement with the Company or any of its subsidiaries or associated companies (if any) under
which the Company or any of such subsidiaries or associated companies has or would have any obligation to me whether now or in the future
or under which I would derive any benefit (in each case, in my capacity as a director of the Company). |
This letter is governed by and shall be construed in accordance
with the laws of Hong Kong.
[name of relevant director]
SCHEDULE 5
FORM OF WRITTEN RESOLUTIONS
SUNRISE CORPORATE
HOLDING LTD.
(the “Company”)
Dated: [to be left blank]
IT IS RESOLVED THAT:
1. | each of the following transfers of the shares in the Company be approved and that, upon the delivery to any director of the Company
of a duly completed instrument of transfer in respect of any of the following transfers, the name of the relevant transferee be entered
forthwith in the register of members of the Company in respect of the relevant shares so transferred and that new share certificates in
respect of such shares be issued forthwith to such transferee in accordance with the Articles of Association of the Company: |
[to be left blank]
2. | each of the following persons be appointed as an additional director of the Company with immediate effect: |
[to be left blank]
3. | the resignation of the following persons as directors of the Company be accepted with immediate effect: |
[to be left blank]
4. | the above changes in members and directors of the Company be entered in the Register of Directors and Register of Members of the Company
and that any director of the Company be authorised to sign and deliver any relevant return in connection therewith. |
[all the directors of the Company to state their names
and sign]
SCHEDULE 6
FORM OF LETTER OF UNDERTAKING AND AUTHORISATION
To: Shining
Rich Holdings Limited 耀富控股有限公司as
Investor (as defined in the Deed) (which expression shall include its successors, assigns and transferees)
Dear Sirs,
Deed
of Share Charge dated 2024 by CHEN SHENG (陈升)
in favour of SHINING RICH HOLDINGS LIMITED 耀富控股有限公司
as Investor (as amended from time to time, the “Deed”)
Terms and expressions defined in or construed for the purposes
of the Deed shall have the same meaning herein.
I hereby unconditionally and irrevocably:
1 | undertake to procure, to the extent of my powers as a director of Sunrise Corporate Holding Ltd. (the
“Company”), that any or all of the shares in the Company which are charged to you pursuant to the Deed shall upon your
request be promptly registered in the name of yourself or (at your request) any person(s) whom you may nominate; |
2 | authorise each of you and any other person(s) authorised by you severally to complete, date and
put into effect: |
| (a) | the attached letter of resignation signed by me; |
| (b) | the attached written resolutions of the board of directors of the Company signed by me; and |
| (c) | any other document signed by me and delivered pursuant to Clause 4.2 (Delivery of Documents of Title) of the Deed, |
in each case at any time after the security constituted
by the Deed shall have become enforceable in accordance with its terms.
This letter is governed by and shall be construed in accordance
with the laws of Hong Kong.
Dated: ______________________
IN WITNESS WHEREOF this
deed has been executed the day and year above written.
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SIGNED SEALED AND DELIVERED |
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by |
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[name of relevant director] |
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In the presence of |
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Signature of witness: |
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Name of witness: |
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SCHEDULE 7
FORM OF LETTER OF INSTRUCTION (AND ACKNOWLEDGEMENT)
TO REGISTERED AGENT
Maples Corporate Services (BVI) Limited
Kingston Chambers
PO Box 173
Road Town, Tortola
British Virgin Islands
Date:
Dear Sir or Madam
SUNRISE CORPORATE HOLDING LTD. (the “Company”)
We hereby notify you that pursuant
to a Charge (the “Charge”) dated [insert date] 2024 between SHINING RICH HOLDINGS LIMITED 耀富控股有限公司
(the “Investor”) and SHENG CHEN (the “Chargor”), the Chargor has granted a security
interest in favour of the
Investor over all the shares standing
in its name on the register of members of the Company (the “Register”) and all other shares in the Company from time
to time legally or beneficially owned by the Chargor in the Company (the “Shares”).
We refer to the Terms and Conditions
under which you provide registered office and agent services to the Company (the “Terms”) and set out below the agreement
reached between the Company, the Chargor and the Investor in relation to the Register maintained by you pursuant to the Terms that, notwithstanding
any other provisions of the Terms:
1 | You are instructed to make an annotation of the existence of the Charge and the security interests created thereby in the Register.
Such annotation should only be removed by you upon your receipt of the Discharge Notice (as defined below). |
2 | At any time after the Investor notifies you in writing that an Event of Default (as defined in the Charge) has occurred you are authorised
and entitled to rely upon the instructions of the Investor to register the Investor or its nominee (as the Investor may direct) in the
Register as the registered holder of the Shares pursuant to the Charge (provided that the Investor delivers to you a duly completed and
executed transfer form in respect of the Shares being transferred), to update the Register of Directors of the Company to reflect a change
of directors of the Company (provided that the Investor delivers to you a duly completed and executed director resignation letter along
with a consent letter for a new director) and to otherwise comply with any directions or instructions from the Investor in relation to
the Charge. Such authorisation and entitlement to rely upon the instructions of the Investor shall only terminate upon your receipt of
a notification in writing from the Investor confirming that the Charge has been discharged (such notification being the “Discharge
Notice”). |
3 | In performing your obligations under the terms of this letter you shall be entitled to rely upon instructions given by, or purporting
to be given by, a director or other officer or authorised signatory of the Investor,
and you shall, if instructed to do so by the Investor, register any transfer of shares either to the Investor (or its nominee) or to any
third party pursuant to the power of sale conferred upon the Investor under the Charge. |
4 | The Investor’s instructions shall prevail in all circumstances in respect of the matters referred to herein and you are entitled
to comply with such instructions of the Investor. |
5 | The Company and the Chargor and the Investor shall jointly and severally indemnify (on a full indemnity basis) and hold harmless you,
the firm of Maples and Calder and any entities, whether partnerships, companies or otherwise, owned or controlled by, or under common
control with or affiliated with, Maples and Calder as may be established from time to time (for themselves and on trust and as agents
for the benefit of the other persons mentioned below), their successors and assigns and their respective directors, officers, employees,
agents and partners present and future and each of them, as the case may be, against all liabilities, obligations, losses, damages, penalties,
actions, proceedings, claims, judgements, demands, costs, expenses or disbursements of any kind (including legal fees and expenses) whatsoever
which they or any of them may incur or be subject to in consequence of acting pursuant to any instructions received from the Investor
in respect of the matters referred to in paragraphs 1 and 2 above. This indemnity provision shall survive termination of the agreement
set out in this letter. |
6 | The agreement set out in this letter shall terminate upon the earlier of the date of: (i) the Discharge Notice; (ii) termination
of the Terms; and (iii) you ceasing to maintain the Register or to act as registered agent of the Company. |
7 | The Company and you agree that the Terms, and all rights and obligations of the parties thereunder, shall remain in full force and
effect. The terms of this letter shall not, except as expressly provided in this letter, be deemed to be consent to any waiver or modification
of any other terms or provisions of the Terms. |
8 | The terms set out in this letter are governed by, and shall be construed in accordance with, the laws of the British Virgin Islands. |
Please confirm by countersigning below that you agree to
the above.
Yours faithfully
Authorised Signatory for and on behalf of SUNRISE CORPORATE HOLDING LTD. |
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Authorised Signatory for and on behalf of
SHINING RICH HOLDINGS LIMITED 耀富控股有限公司 |
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SHENG CHEN |
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Acknowledged and agreed by: |
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Authorised Signatory |
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for and on behalf of |
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Maples Corporate Services (BVI) Limited |
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SCHEDULE 8
FORM OF DEED OF UNDERTAKING AND CONFIRMATION
FROM THE COMPANY
[Date]
Shining Rich Holdings Limited
耀富控股有限公司
(the “Investor”)
Dear Sirs
Sunrise Corporate Holding Ltd. (the “Company”)
We refer to the charge over shares
in respect of all the shares held by the Chargor in the Company (the “Share Charge”) between Sheng Chen as chargor
(the “Chargor”) and the Investor whereby, inter alia, the Chargor granted a charge over the Shares and all Related
Rights in favour of the Investor.
Capitalised words and expressions used
in this deed which are not expressly defined herein have the same meanings ascribed to them in the Share Charge.
This deed of undertaking and confirmation
is given pursuant to the Share Charge.
1. | For valuable consideration receipt of which is hereby acknowledged, the Company hereby irrevocably and unconditionally undertakes
while an Event of Default has occurred and is continuing to register in the Register of Members any and all share transfers to the Investor
or its nominee(s) in respect of the Shares submitted to the Company by the Investor. |
2. | The Company hereby confirms that it has instructed its registered agent to make an annotation of the existence of the Share Charge
and the security interests created thereby in the Register of Members pursuant to the Share Charge. |
3. | The Company hereby confirms that the Register of Members provided to the Investor pursuant to the Share Charge is a certified copy
of the original Register of Members and it will not redesignate or otherwise seek to recreate the Register of Members. |
THIS DEED POLL has been executed
and delivered as a Deed Poll on the day and year first above written.
IN WITNESS WHEREOF this deed
has been executed the day and year above written.
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EXECUTED AND DELIVERED |
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AS A DEED |
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by |
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for and on behalf of |
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Duly Authorised Signatory |
SUNRISE CORPORATE HOLDING |
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LTD. |
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Name: |
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Title: |
EXECUTION PAGE
The parties hereto have executed and delivered this Deed
as a deed the day and year first above written.
THE
CHARGOR
SIGNED SEALED AND DELIVERED
AS A DEED by |
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![](https://www.sec.gov/Archives/edgar/data/1541680/000110465924078193/image_008.jpg) |
CHEN SHENG (陈升) |
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/s/ CHEN SHENG |
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CHEN SHENG (陈升) |
[Execution Page – Share Charge (Guarantor
– BVI-3) – Chargor]
THE INVESTOR
EXECUTED
AND DELIVERED
AS A DEED by Wang
Peng |
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![](https://www.sec.gov/Archives/edgar/data/1541680/000110465924078193/image_009.jpg)
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, its
authorised signatory for and on behalf of |
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SHINING
RICH HOLDINGS LIMITED
耀富控股有限公司 |
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/s/ Wang Peng |
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Name: Wang Peng |
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Title: Authorised Signatory |
[Execution Page – Share Charge (Guarantor
– BVI-3) – Investor]
Exhibit 99.32
EXECUTION VERSION
LISTCO ACKNOWLEDGEMENT LETTER
THIS
DEED is made on 5 July 2024
AMONG
VNET
GROUP, INC., an exempted company incorporated with limited liability under the laws of the Cayman Islands with company
number 232198 and its registered office at Maples Corporate Services Limited, P.O. Box 309, Ugland House, Grand Cayman, KY1-1104,
Cayman Islands (the “Listco”);
SHINING
RICH HOLDINGS LIMITED 耀富控股有限公司, a
BVI business company incorporated under the laws of the British Virgin Islands with limited liability with company number 1972405
and with its registered office at Portcullis Chambers, 4th Floor Ellen Skelton Building, 3076 Sir Francis Drake Highway, Road Town,
Tortola, British Virgin Islands VG1110 (the “Investor”); and
GENTAO
CAPITAL LIMITED, a BVI business company incorporated under the laws of the British Virgin Islands with limited liability with
company number 1759132 and with its registered office at Vistra Corporate Services Centre, Wickhams Cay II, Road Town, Tortola, VG1110,
British Virgin Islands (the “Issuer”).
IT IS AGREED
| 1.1 | The Listco understands
that: |
| (a) | the Issuer has entered or will enter into
a subscription agreement dated on or around the date of this Deed with, among others, the
Investor in relation to the 12 per cent. secured guaranteed note in the principal amount
up to US$24,000,000 (the “Note”) (as may be further amended and/or restated
from time to time, the “Subscription Agreement”); |
| (b) | the Issuer has executed or will execute
a note instrument by way of deed poll dated on or around the date of this Deed creating and
constituting the Note (the “Note Instrument”); |
| (c) | each of Beacon Capital Group Inc. (a BVI
business company with company number 469757) (“Beacon”), Fast Horse Technology
Limited (a BVI business company with company number 368150) (“Fast Horse”),
Sunrise Corporation Holding Ltd. (a BVI business company with company number 1622848) (“Sunrise”,
together with the Issuer, Beacon and Fast Horse, the “Corporate Obligors”)
and Chen Sheng has granted or will grant a guarantee to the Investor to guarantee the Issuer’s
obligations under the Transaction Documents (as defined in the Subscription Agreement) (the
“Transaction Documents”); |
| (d) | as security for the Issuer’s obligations
and liabilities under the Transaction Documents (as defined below), each Corporate Obligor
has granted or will grant a security interest in favour of the Investor pursuant to a Hong
Kong law governed share charge between each Corporate Obligor and the Investor (together
the “Share Charges”) over the Class A ordinary shares (the “Initial
Charged Class A Shares”) and/or Class B ordinary shares (the “Initial
Charged Class B Shares”) registered in each Corporate Obligor’s name
on the register of members of the Listco (the “Register”) set out below,
and such other Class A ordinary shares in the Listco (the “Additional Charged
Class A Shares”) and/or Class B ordinary shares in the Listco (the “Additional
Charged Class B Shares”) owned by that Corporate Obligor which become subject
to the security created pursuant to the terms of any Share Charges from time to time (the
Additional Charged Class A Shares, the Additional Charged Class B Shares, the Initial
Charged Class A Shares and the Initial Charged Class B Shares are collectively
referred to as the “Charged Shares”): |
Corporate
Obligor |
Number
of Class A
ordinary shares /
ADSs charged as at
the date of this Deed |
Share
certificate
number
(representing
the Class A
ordinary shares
charged as at
the date of this
Deed) |
Number
of Class B
ordinary shares
charged as at the
date of this Deed |
Share
certificate
number (representing
the Class B ordinary
shares charged as at
the date of this Deed) |
Issuer |
Class A
ordinary share: 1 |
OA-284 |
0 |
N/A |
ADSs:
5,604,821 (to be cancelled and reregistered as 33,628,926 Class A ordinary shares) |
N/A |
Beacon |
34,744,206 |
OA-283 |
0 |
N/A |
Fast
Horse |
0 |
N/A |
19,670,117 |
OB-033
and OB-037 |
Sunrise |
0 |
N/A |
8,087,875 |
OB-063 |
| 2. | LISTCO’S
ACKNOWLEDGEMENTS AND UNDERTAKINGS |
| 2.1 | Constitutional
documents: |
| (a) | The Listco confirms
to the Investor that: |
| (i) | the Transaction Documents or any of the
documents referred to therein or the transactions contemplated thereunder; and |
| (ii) | the security interest created over the
Charged Shares and the Restricted ADSs (as defined in the RADS Letter Agreement (as defined
below)) upon conversion of any Pledged Shares) under each Share Charge, and any action by
the Investor with respect to the enforcement of the Charged Shares or the Restricted ADSs
(including any conversion of the Charged Shares in the form of Class B ordinary shares
in the Listco to Class A ordinary shares in the Listco, any deposit of the Charged Shares
into the ADS facility in exchange for the issuance of American depositary shares of the Listco
(“ADSs”), and any sale and/or transfer of the Charged Shares and/or ADSs
issued in exchange therefor, in each case, upon an enforcement of any or all of the Share
Charges), |
do not and will not violate:
| (A) | any of the Listco’s constitutional documents; |
| (B) | any shareholders’ agreement, voting
agreement or other contract to which the Listco is a party; or |
| (C) | any corporate policy of the Listco or other
rules or regulations of the Listco applicable to the Obligors, including the “Statement
of Policies Governing Material Non-Public Information and the Prevention of Insider Trading”
adopted by the Listco (as set out in Schedule 1 to this Deed) (together with any amendment
or variation thereto, the “Insider Trading Policy”). |
| (b) | The Listco undertakes
to Investor that: |
| (i) | until the Listco is provided
with a written notice from the Investor confirming that: |
| (A) | the Secured Obligations (as defined in
each Share Charges) have been irrevocably and unconditionally paid and discharged in full;
or |
| (B) | each of the Share Charges has otherwise
been released or discharged by the Investor (the “Discharge Notice”), |
the Listco shall not make any amendments
to the Insider Trading Policy that are materially prejudicial to the interests of the Investor, to the extent permitted under Applicable
Rules (as defined below); and
| (ii) | subject to paragraph (i) above, it
shall notify the Investor of any amendments to the Insider Trading Policy together with an
accompanying copy of the most updated Insider Trading Policy incorporating the relevant amendments. |
| (c) | As of the date hereof, assuming that the
Investor does not fall within the definition of “Insider” under the Insider Trading
Policy, the Listco confirms to the Investor that: |
| (i) | the Investor, solely in connection with
the Transaction Documents and the transactions contemplated thereunder, is not subject to
the Insider Trading Policy or any other insider trading, corporate or similar policy of the
Listco; |
| (ii) | each Corporate Obligor is subject to the
Insider Trading Policy; |
| (iii) | the Listco has not designated, and does
not presently have any intention to designate, any “limited trading period” as
described in the Insider Trading Policy; and |
| (iv) | the Compliance Officer of the Listco has
granted each Corporate Obligor consent for the entry into and the performance by that Corporate
Obligor of the Transaction Documents in accordance with the Insider Trading Policy. |
“Applicable Rules”
means (i) law, statute, ordinance, decree, requirement, order, judgment, rule, regulation (or interpretation of any of the foregoing)
in any relevant jurisdiction or imposed by any regulatory body with jurisdiction over any persons relevant to the subject matter hereof;
and (ii) the terms and conditions of the ADR deposit agreement and any additional rules and policies imposed by the ADR depositary.
| 2.2 | No objection to transaction:
The Listco confirms to the Investor that it does not have any objections to the entry
into and the performance by each Corporate Obligor of, and the transaction contemplated by
the Transaction Documents, including: |
| (a) | the creation of security over the Charged Shares under the Share Charges; |
| (b) | the conversion of any Charged Shares to Restricted ADSs; |
| (c) | the creation of security over the Restricted
ADSs (upon conversion of any Charged Shares) under the Share Charges; and |
| (d) | any sale and/or transfer of the Charged
Shares and/or conversion of the Charged Shares in the form of Class B ordinary shares
in the Listco to Class A ordinary shares in the Listco and/or the conversion of the
Charged Shares in the form of Class A ordinary shares in the Listco to ADSs upon an
enforcement of all or any of the Share Charges. |
| 2.3 | Current public information:
The Listco confirms to the Investor that it has (i) filed all reports required to
be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), during the preceding 12 months, and (ii) been
subject to such filing requirements for the past 90 days. |
| 2.4 | Facilitate conversion of Class B ordinary
shares to Class A ordinary shares: At any time upon receipt of any form executed
by a Corporate Obligor under which that Corporate Obligor elects to convert any Class B
ordinary shares in the Listco (which are Charged Shares) to Class A ordinary shares
in the Listco (together with the relevant original share certificates for these Class B
ordinary shares in the Listco to be so converted) in the event that the Investor notifies
the Listco that the security created over the Charged Shares has become enforceable, the
Listco shall use its best efforts to promptly do all such acts and/or execute all such documents
instructed by that Corporate Obligor and/or the Investor (as applicable) in accordance with
the Transaction Documents in order to: |
| (a) | effect such conversion of Class B
ordinary shares in the Listco to Class A ordinary shares in the Listco (such converted
shares being the “Converted Shares”); |
| (b) | issue a new share certificate representing
the Converted Shares, registered in the name of the Investor (or its nominee) or otherwise
in accordance with its instructions, and deliver such new share certificate directly to the
Investor or to its order; |
| (c) | update the register of members of the
Listco showing the Investor (or its nominee) or otherwise in accordance with its instructions,
as the registered owner of the Converted Shares; and |
| (d) | make an annotation in the form approved
by the Investor in the Register in respect of the Converted Shares. |
| 2.5 | Facilitate sale upon enforcement: Upon
being notified by the Investor that the security created over the Charged Shares or the Restricted
ADSs has become enforceable, the Listco undertakes, to the extent permitted under Applicable
Rules, including the Exchange Act and the Securities Act (as defined below) and all regulations
promulgated thereunder: |
| (a) | to the Investor that, to the extent permitted
under Applicable Rules, it will use its best efforts to promptly take such actions as the
Investor determines is necessary to facilitate the exercise by the Investor of any rights
or remedies pursuant to the Transaction Documents (including without limitation, to (i) effect
any conversion of Class B ordinary shares in the Listco to Class A ordinary shares
in the Listco, (ii) register and procure its share registrar, Maples Fund Services (Cayman)
Limited (the “Cayman Share Registrar”) or its registered office provider,
Maples Corporate Services Limited (the “Registered Office”) (as applicable,
with such applicability being based on which of them holds the original Register) to register
the transferee specified in the instrument of transfer as the registered holder of the Charged
Shares, (iii) issue and procure the Cayman Share Registrar or the Registered Office
(as applicable) to issue share certificates representing the Charged Shares in the name of
such transferee and (iv) subject to the Investor’s compliance with all requirements
by the Depositary and the applicable laws and regulations (and the Listco shall promptly
do all such acts and/or execute all such documents the Investor deems necessary or desirable
for such compliance), remove all restrictive legends from the Charged Shares and convert
them into freely tradeable ADSs that are capable of being identified by a DTC-eligible CUSIP
number and deliver requisite documents in connection with any sale or transfer of the Charged
Shares); |
| (b) | to the extent permitted under Applicable
Rules, not to take any actions that would hinder or delay the exercise of any remedies of
the Investor pursuant to the Share Charges and/or the Transaction Documents; |
| (c) | to enter into and to procure the Cayman
Share Registrar and/or the Registered Office (as applicable, with such applicability being
based on which of them holds the original Register) to enter into a registrar confirmation
letter (the “Registrar Confirmation Letter”) among the Corporate Obligors,
the Listco, the Investor and the Cayman Share Registrar and/or the Registered Office (as
applicable, with such applicability being based on which of them holds the original Register); |
| (d) | to promptly comply with its obligations
and use commercially reasonable efforts to procure the Cayman Share Registrar and the Registered
Office (as applicable, with such applicability being based on which of them holds the original
Register) to promptly comply with their obligations under the Registrar Confirmation Letter; |
| (e) | to enter into a depositary confirmation
letter (the “Depositary Confirmation Letter”) to be entered into among
the Listco, the Investor and the depositary of the Listco’s ADS facility, Citibank,
N.A. (and any successor depositary of the Listco's ADS facility, the “Depositary”)
in form and substance satisfactory to the Investor promptly upon request by the Investor; |
| (f) | to promptly comply with its obligations
and use commercially reasonable efforts to procure the Depositary to promptly comply with
its obligations under the Depositary Confirmation Letter; and |
| (g) | not to replace the current depositary
of the ADS facility of the Listco, the current registered office provider, being as of the
date of this Deed, Maples Corporate Services Limited, or the current share registrar of the
Listco, being as of the date of this Deed, Maples Fund Services (Cayman) Limited, without
providing a two-week advance notice to the Investor, and upon any such replacement, to procure
the relevant successor depositary, registered office provider and/or share registrar to enter
into with the Investor an agreement on substantially the same terms as the Registrar Confirmation
Letter or the Depositary Confirmation Letter, as applicable. |
| 2.6 | Facilitate conversion of Charged Shares
to Restricted ADSs: At any time upon receipt of any form executed by a Corporate Obligor
under which that Corporate Obligor elects to convert any Class A ordinary shares in
the Listco (which are Charged Shares) to Restricted ADSs (together with the relevant original
share certificates for these Class A ordinary shares in the Listco to be so converted)
pursuant to paragraph (c) of clause 15.21 of the Subscription Agreement, the Listco
shall use its best efforts to promptly do all such acts and/or execute all such documents
instructed by that Corporate Obligor and/or the Investor (as applicable) in accordance with
the Transaction Documents in order to: |
| (a) | effect such conversion of Class A
ordinary shares in the Listco to Restricted ADSs in the Listco, registered in the name of
the Investor for the benefit of the Issuer; and |
| (b) | facilitate the relevant Corporate Obligor
to comply with its obligations under the Share Charges. |
| 2.7 | Other undertakings: The Listco undertakes
to Investor that, until the Listco is provided with a Discharge Notice, subject to compliance
with the requirements by the Depositary and to the extent permitted under Applicable Rules,
the Listco will refrain from exercising any discretion (whether pursuant to the constitutional
documents of the Listco or otherwise) to suspend the registration of transfer of its Class A
ordinary shares, Class B ordinary shares and/or ADSs, without the prior written consent
of the Investor. For the avoidance of doubt, the foregoing shall not prohibit the Listco
from entering into any transaction in which any of the securities are redeemed, exchanged,
converted or otherwise cease to be outstanding, so long as the consideration received thereof
will remain subject to the Investor’s security interest. |
| 2.8 | ADS Conversion Procedures: The Listco
confirms that the procedures for the conversion of the Charged Shares for ADSs as set out
in the “Procedures for Conversion of Class A Ordinary Shares into ADSs”
of the Listco dated May 10, 2024 (the “Conversion Procedures Memo”)
and the Amended and Restated Restricted ADS Letter Agreement dated January 26, 2021
(the “RADS Letter Agreement”) (each as set out in Schedule 2 to this Deed)
(together with any amendment or variation thereto, the “Listco Standard Conversion
Procedures”) have been adopted and agrees that: |
| (a) | until the Listco is provided with a Discharge
Notice from the Investor, the Listco shall not make any amendments to the Listco Standard
Conversion Procedures that are materially prejudicial to the interests of the Investor, unless
such amendments are required by the Depositary or applicable laws and regulations; and |
| (b) | subject to paragraph
(a) above, it shall notify the Investor of any amendments to the Listco Standard Conversion
Procedures together with an accompanying copy of the most updated Listco Standard Conversion
Procedures incorporating the relevant amendments. |
| 2.9 | Pre-signed documents: The Listco undertakes
to deliver to the Investor on or prior to the date of this Deed two originals of the following
documents (the “Conversion Documents”): |
| (a) | confirmation letter in the form set out in Annex E of the Conversion
Procedures Memo; |
| (b) | officer’s certificate in the form set out in Annex F of the
Conversion Procedures Memo; and |
| (c) | Listco consent letter in the form set out in Annex G of the Conversion
Procedures Memo, |
each of which has been duly executed
by a director of the Listco in blank (with the date, name of the transferee and the number of shares left blank), and authorizes the
Investor to (and the Investor shall be entitled to) complete, date and put into effect, under its power of attorney given in this Deed
or otherwise, each such document, and deliver the signed, dated and completed Conversion Documents to the Cayman Share Registrar or the
Registered Office (as applicable, with such applicability being based on which of them holds the original Register) and/or the Depositary
to confirm the Listco's instruction to the Cayman Share Registrar or the Registered Office (as applicable, with such applicability being
based on which of them holds the original Register) and/or the Depositary to record the transfer any or all of the Charged Shares to
any person specified by the Investor (including the Investor, the Depositary or any of their nominees).
The Listco agrees and undertakes that
it shall ensure that all original versions of the Conversion Documents which have been duly executed by a director of the Listco in blank
remain valid and properly authorised, provided that if any of such Conversion Documents is no longer in a form which is properly authorised
by the Listco or which would be validly accepted by its intended recipients (including, without limitation, where any signatory to such
Conversion Document is no longer validly authorised to execute such document or has resigned after the date on which he/she signed the
relevant Conversion Document), the Listco shall promptly notify the Investor, and shall promptly, and in any event within two Business
Days (as defined in the Subscription Agreement) provide the Investor with a scanned copy of an updated version of such Conversion Document
(and within ten Business Days provide the Conversion Document with such original copies) which has been duly executed by an authorised
signatory of the Listco in blank (with the date, name of the transferee and the number of shares left blank) in such form which is properly
authorised by the Listco and which can be validly accepted by its intended recipients.
| 2.10 | Pre-Signed Share Certificates:
The Listco undertakes to: |
| (a) | on or prior to the date of this Deed,
provide evidence satisfactory to the Investor that it has delivered to the Cayman Share Registrar
or the Registered Office (as applicable, with such applicability being based on which of
them holds the original Register) at least ten original share certificates of the Listco
duly executed in blank by its directors and (if required) sealed (“Pre-Signed Original
Share Certificates”); |
| (b) | ensure at any time during the Security Period (as defined in each
Cayman Share Mortgage) that at least two Pre-Signed Original Share Certificates are reserved
by the Cayman Share Registrar or the Registered Office (as applicable, with such applicability
being based on which of them holds the original Register) for transfer and conversion of
the Charged Shares for the benefit of the Investor. |
| 2.11 | Register of Members: The Listco irrevocably
undertakes that it shall provide the Investor with a certified extract of the Register evidencing
the ownership status of the Charged Shares upon written request made by the Investor. |
| 2.12 | Maintain sufficient F-6 headroom: Until
the Listco is provided with a Discharge Notice, the Listco irrevocably undertakes: |
| (a) | that at all times when it has an effective
F-6 Registration Statement in place, it will maintain sufficient headroom equal to at least
the number of the Charged Shares under the F-6 Registration Statement filed by the Listco
in accordance with the Securities Act; and |
| (b) | that it shall provide the Investor, within
two Business Days of a request, a written response of the aggregate number of ADSs then outstanding
and the aggregate number of ADSs that are then available for distribution under the latest
F-6 Registration Statement filed by the Listco in accordance with the Securities Act. |
| 2.13 | Further Assurance: The Listco shall
promptly execute and deliver such documents and perform such acts as may reasonably be required
for the purpose of giving full effect to this Deed. |
| 3.1 | Counterparts: This Deed may be executed
in any number of counterparts and all those counterparts taken together shall be deemed to
constitute one and the same letter. |
| 3.2 | Execution: The parties to this Deed
intend that this Deed takes effect as a deed notwithstanding the fact that the Investor may
only execute it under hand. |
| 3.3 | Authority: The Listco confirms that
the undersigned director has the requisite power, approval and authority to enter into and
perform, and has taken all necessary action (including approval by the directors of the Listco)
to authorize the entry into and performance of this Deed and any letter or confirmation or
other document that is required to be delivered under or in connection with this Deed, in
each case, on behalf of the Listco. |
| 3.4 | Notice: Any notice required to be made
to any party under this Deed may be made by e-mail to each of the respective persons indicated
below (or, in each case, his or her successor if such party has notified the other party
in writing of such succession), and such notice shall be deemed to have been received by
the intended recipient at his or her e-mail address at the time at which such email was sent. |
Listco:
Address: 37/F,
Tower 1, Metroplaza, 223, Hing Fong Road, Kwai Fong, New Territories, Hong Kong Attention: Mr. Qiyu Wang, Chief Financial Officer
Email: wang.qiyu3@vnet.com
Investor:
Attention:
workforpapper@163.com
Email: Fang
Li / Tong Lin
| 3.5 | Third party rights: Unless expressly
provided to the contrary in this Deed, a person who is not a party to this Deed has no right
under the Contracts (Rights of Third Parties) Act, 2014 of the Cayman Islands to enforce
or enjoy the benefit of any term of this Deed. Notwithstanding any terms of this Deed, the
consent of any third party is not required for any variation (including any release or compromise
of any liability under) or termination of this Deed. |
| 3.6 | Governing law: The terms set out in
this Deed are governed by, and shall be construed in accordance with, the laws of the Cayman
Islands. Each of the undersigned irrevocably agrees that the courts of the Cayman Islands
shall have non-exclusive jurisdiction to hear and determine any claim, suit, action or proceeding,
and to settle any disputes, which may arise out of or are in any way related to or in connection
with this Deed, and, for such purposes, irrevocably submits to the non-exclusive jurisdiction
of such courts. |
[Remainder of Page Intentionally Blank]
IN WITNESS whereof this Deed has been executed
as a deed and is delivered on the day and year first above written.
EXECUTED AND DELIVERED AS A DEED for an on behalf of) VNET GROUP, INC. |
|
|
|
by CHEN SHENG
in the presence of |
/s/ Chen
Sheng |
|
Name: Chen Sheng |
|
Title: Director |
Signature of witness: |
/s/ Sun Yaxuan |
|
Name of witness: |
Sun Yaxuan |
|
[Execution Page - Listco Acknowledgement
Letter - Listco]
For and on behalf of
GENTAO CAPITAL LIMITED
/s/ Chen Sheng |
|
Name: Chen Sheng |
|
Title: Director |
|
[Execution Page -- Listco Acknowledgement
Letter — Issuer]
For and on behalf of
SHINING RICH HOLDINGS LIMITED
耀富控股有限公司,
Name:Wang Peng
Title: Authorised Signatory
[Execution Page — Listco Acknowledgement
Letter — Investor]
Schedule 1
Insider Trading Policy
VNET GROUP, INC.
AMENDED AND RESTATED STATEMENT
OF POLICIES GOVERNING MATERIAL,
NON-PUBLIC INFORMATION AND THE PREVENTION OF INSIDER TRADING
(Initially adopted on February 25, 2011,
effective on April 20, 2011 and
amended and restated on April 9, 2024)
TABLE OF CONTENTS
Page No.
I. |
SUMMARY OF POLICY CONCERNING
TRADING IN COMPANY SECURITIES |
1 |
|
|
|
II. |
THE USE OF INSIDE INFORMATION IN CONNECTION
WITH TRADING IN SECURITIES |
1 |
| A. |
General Rule. |
1 |
| |
|
|
| B. |
Who Does this Statement Apply To? |
3 |
| |
|
|
| C. |
Other Companies’ Stock. |
3 |
| |
|
|
| D. |
Hedging and Derivatives. |
3 |
| |
|
|
| E. |
General Guidelines. |
4 |
III. |
OTHER LIMITATIONS ON SECURITIES
TRANSACTIONS |
7 |
| A. |
Public Resales – Rule
144. |
7 |
| |
|
|
| B. |
Private Resales. |
8 |
| |
|
|
| C. |
Restrictions on Purchases of Company
Securities. |
8 |
| |
|
|
| D. |
Filing Requirements. |
8 |
Annex A INTRODUCTION OF 10B5-1 PLANS |
10 |
|
|
Annex B FORM OF REQUEST FOR APPROVAL TO TRADE IN THE SECURITIES OF VNET GROUP, INC. |
14 |
| I. | SUMMARY OF POLICY CONCERNING TRADING IN COMPANY SECURITIES |
It is the policy of VNET Group, Inc., its
subsidiaries and consolidated affiliated entities (collectively, the “Company”) that it will, without exception, comply
with all applicable laws and regulations in conducting its business. Each employee, each executive officer, each director and each consultant
is expected to abide by this Amended and Restated Statement of Policies Governing Material, Non-Public Information and the Prevention
of Insider Trading (this “Statement”). When carrying out Company business, consultants, employees, executive officers
and directors must avoid any activity that violates applicable laws or regulations. In order to avoid even an appearance of impropriety,
the Company’s directors, officers, employees and consultants are subject to pre-approval requirements and other limitations on
their ability to enter into transactions involving the Company’s securities. Although these limitations do not apply to transactions
pursuant to written plans for trading securities that comply with Rule 10b5-1 under the Securities Exchange Act of 1934 (the “Exchange
Act”), the entry into, amendment or termination of any such written 10b5-1 Plans (as defined below) is subject to pre-approval
requirements and other limitations.
| II. | THE
USE OF INSIDE INFORMATION IN CONNECTION WITH TRADING IN SECURITIES |
A. General Rule.
The U.S. federal securities laws regulate the
sale and purchase of securities in the interest of protecting the investing public. The U.S. federal securities laws give the Company,
its officers and directors, consultants and employees the responsibility to ensure that information about the Company is not used unlawfully
in the purchase and sale of securities.
All employees, consultants, executive officers
and directors should pay particularly close attention to the laws against trading on “inside” information. These laws are
based upon the belief that all persons trading in a company’s securities should have equal access to all “material”
information about that company. Information is considered to be “material” if its disclosure would be reasonably likely to
affect (a) an investor’s decision to buy or sell the securities of the company to which the information relates, or (b) the
market price of that company’s securities. While it is not possible to identify in advance all information that will be deemed
to be material, some examples of such information would include the following: earnings; financial results or projections; dividend actions;
mergers and acquisitions; capital raising and borrowing activities; major dispositions; major new customers, projects or products; new
technologies; major personnel changes in management or change in control; expansion into new markets; unusual gains or losses in major
operations; significant writedowns of assets or additions to reserves for bad debts or contingent liabilities; default in material indebtedness;
major litigation or legal proceedings; granting of stock options; and major sales and marketing changes. When doubt exists, the information
should be presumed to be material. If you are unsure whether information of which you are aware is material inside information,
you should consult with the Company’s Chief Financial Officer. No individuals other than specifically authorized personnel may
release material information to the public or respond to inquiries from the media, analysts or others. If you are contacted by the media,
a research analyst or other outsiders seeking information about the Company and if you have not been expressly authorized by the Company’s
Chief Financial Officer to provide information, you should decline to provide and direct the inquiry or request to the Chief Financial
Officer. You should also not communicate any material information to anyone within the Company other than on a need-to-know basis. On
occasion, it may be necessary for legitimate business reasons to disclose inside information to outside persons. Such persons might include
investment bankers, lawyers, auditors or other companies seeking to engage in a potential transaction with the Company. In such circumstances,
the information should not be conveyed until an express understanding (for example, a non-disclosure agreement) has been reached that
such information is not to be used for trading purposes and may not be further disclosed other than for legitimate business reasons.
For example, if an employee, a consultant, an executive officer or a director of a company knows material non-public information, that
employee, consultant, executive officer or director is prohibited from buying or selling shares in the company until the information
has been disclosed to the public. This is because the consultant, employee, executive officer or director knows information that will
probably cause the share price to change, and it would be unfair for the employee, consultant, executive officer or director to have
an advantage (knowledge that the share price will change) that the rest of the investing public does not have. In fact, it is more than
unfair; it is considered to be fraudulent and illegal. Civil and criminal penalties for this kind of activity are severe.
The general rule can be stated as follows:
It is a violation of U.S. federal securities laws for any person to buy or sell securities if he or she is in possession of material
inside information. Information is “material” if its disclosure would be reasonably likely to affect (a) an investor’s
decision to buy or sell the securities of the company to which the information relates, or (b) the market price of that company’s
securities. It is “inside” information if it has not been publicly disclosed in a manner making it available to investors
generally on a broad-based non-exclusionary basis. Furthermore, it is illegal for any person in possession of material inside information
to provide other people with such information or to recommend that they buy or sell the securities. In that case, they may both be held
liable.
The Securities and Exchange Commission (the “SEC”),
the stock exchanges, such as Nasdaq Global Select Market (“NASDAQ”), and plaintiffs lawyers focus on uncovering insider
trading. A breach of the insider trading laws could expose the insider to criminal fines up to three (3) times the profits earned
and imprisonment up to ten (10) years, in addition to civil penalties (up to three (3) times of the profits earned), and injunctive
actions. In addition, punitive damages may be imposed under applicable state laws. The U.S. federal securities laws also subject controlling
persons to civil penalties for illegal insider trading by employees, including employees located outside the United States. Controlling
persons include directors, officers, and supervisors. These persons may be subject to fines up to the greater of $1,000,000 or three
(3) times profit (or loss avoided) by the insider trader.
Inside information does not belong to the individual
directors, officers, consultants or employees who may handle it or otherwise become knowledgeable about it. It is an asset of the Company.
Any person who uses such information for personal benefit or discloses it to others outside the Company violates the Company’s
interests. More particularly, in connection with trading in the Company’s securities, it is a fraud against members of the investing
public and against the Company.
All directors, executive officers, consultants
and employees of the Company must observe these policies at all times. Your failure to do so will be grounds for internal disciplinary
action, up to and including termination of your employment or directorship.
| B. | Who
Does this Statement Apply To? |
The prohibition against trading on inside information applies to directors,
officers, consultants and all other employees, and to other people who gain access to that information. The prohibition applies to both
domestic and international employees of the Company. Because of their access to confidential information on a regular basis, it is the
Company’s policy to subject all directors, executive officers, employees and consultants of the Company (the “Window Group”)
to additional restrictions on trading in Company securities. The restrictions for the Window Group are discussed in Section E below.
In addition, directors, executive officers, consultants and employees with inside knowledge of material information may be subject to
ad hoc restrictions on trading from time to time.
| C. | Other
Companies’ Stock. |
Employees, consultants, executive officers and
directors who learn material information about suppliers, customers, or competitors through their work at the Company, should keep it
confidential and not buy or sell stock in such companies until the information becomes public. Employees, consultants, executive officers
and directors should not give tips about such stock.
| D. | Hedging
and Derivatives. |
Employees, consultants, executive officers, directors
and consultants are prohibited from engaging in any hedging transactions (including transactions involving options, puts, calls, prepaid
variable forward contracts, equity swaps, collars and exchange funds or other derivatives) that are designed to hedge or speculate on
any change in the market value of the Company’s equity securities.
Trading in options or other derivatives is generally
highly speculative and very risky. People who buy options are betting that the stock price will move rapidly. For that reason, when a
person trades in options in his or her employer’s stock, it will arouse suspicion in the eyes of the SEC that the person was trading
on the basis of inside information, particularly where the trading occurs before a company announcement or major event. It is difficult
for a consultant, employee, executive officer or director to prove that he or she did not know about the announcement or event.
If the SEC or the NASDAQ were to notice active
options trading by one or more consultants, employees, executive officers or directors of the Company prior to an announcement, they
would investigate. Such an investigation could be embarrassing to the Company (as well as expensive), and could result in severe penalties
and expense for the persons involved. For all of these reasons, the Company prohibits its consultants, employees, executive officers
and directors from trading in options or other derivatives involving the Company’s stock. This Statement does not pertain to employee
stock options granted by the Company.
The following guidelines should be followed in
order to ensure compliance with applicable antifraud laws and with the Company’s policies:
| 1. | Nondisclosure.
Material inside information must not be disclosed to anyone, except to persons within
the Company whose positions require them to know it. “Tipping” refers to the
transmission of inside information from an insider to
another person. Sometimes this involves a deliberate conspiracy in which the tipper passes
on information in exchange for a portion of the “tippee’s” illegal trading
profits. Even if there is no expectation of profit, however, a tipper can have liability
if he or she has reason to know that the information may be misused. Tipping inside information
to another person is like putting your life in that person’s hands. So the safest choice
is: Don’t tip. |
| 2. | Trading in Company Securities.
No consultant, employee, executive officer or director should place a purchase or sale order,
or recommend that another person place a purchase or sale order in the Company’s securities
when he or she has knowledge of material information concerning the Company that has not
been disclosed to the public. You should note that “purchase” and “sale”
are defined broadly under the U.S. federal securities law. “Purchase” includes
not only the actual purchase of a security, but also any contract to purchase or otherwise
acquire a security. “Sale” includes not only the actual sale of a security, but
also any contract to sell or otherwise dispose of a security. These definitions extend to
a broad range of transactions including conventional cash-for-stock transactions, the grant
and exercise of stock options and acquisitions and exercises of warrants, puts, calls and
other derivatives related to a security, including engaging in any “short sales”
of the Company’s securities. The exercise of employee stock options granted by the
Company is not subject to this Statement. However, stock that was acquired upon exercise
of a stock option will be treated like any other stock, and may not be sold by an employee,
executive officer, director or consultant who is in possession of material inside information.
Any employee, executive officer, director or consultant who possesses material inside information
should wait until the start of the close of business on the second Trading Day (as defined
below) after the information has been publicly released before trading. |
| 3. | Avoid
Speculation. Investing in the Company’s Class A ordinary shares and/or American
Depository Shares representing Class A ordinary shares provides an opportunity to share
in the future growth of the Company. But investment in the Company and
sharing in the growth of the Company does not mean short range speculation based on fluctuations
in the market. Such activities put the personal gain of the consultant, employee,
executive officer or director in conflict with the best interests of the Company and its
stockholders. Although this Statement does not mean that consultants, employees,
executive officers or directors may never sell shares, the Company encourages employees,
consultants, executive officers and directors to avoid
frequent trading in Company stock. Speculating in Company stock is not part of the Company
culture. |
| 4. | Trading
in Other Securities. No consultant, employee, executive officer or director should place
a purchase or sale order, or recommend that another person place a purchase or sale order,
in the securities of another corporation (such as a
supplier, an acquisition target or a competitor), if the consultant, employee, executive
officer or director learns in the course of his or her contract or employment confidential
information about the other corporation that is likely to affect the value of those securities.
For example, it would be a violation of the U.S. securities
laws if a consultant, employee, executive officer or director learned through Company
sources that the Company intended to purchase assets from a company, and then placed an order
to buy or sell stock in that other company because of the likely increase or decrease in
the value of its securities. |
| 5. | Restrictions on the
Window Group. The Window Group consists of all directors, executive officers, employees
and consultants of the Company. The Window Group is subject to the following restrictions
on trading in Company securities: |
| · | Trading
of the Company’s securities or entering into, amendment or termination of a 10b5-1
Plan (as defined below) is permitted from the start of the close of business on the second
Trading Day (as defined below) following the date of the Company’s public disclosure
of its financial results for the prior fiscal year or fiscal quarter, as applicable, and
ending on December 31, March 31, June 30 and September 30 (the “Window”),
subject to the restrictions below; |
In other words,
| a) | beginning on January 1 of each year,
no member of the Window Group may purchase or sell any security of the Company or enter into
a 10b5-1 Plan until the close of business on the second Trading Day following the date of
the Company’s public disclosure of its financial results for the fiscal year ended
on December 31 of the prior year, and |
| b) | beginning on April 1, July 1
and October 1 of each year, no member of the Window Group may purchase or sell any security
of the Company or enter into a 10b5-1 Plan until the close of business on the second Trading
Day following the date of the Company’s public disclosure of its financial results
for the fiscal quarter ended on March 31, June 30 and September 30 of that
year, respectively; |
| · | If
the Company’s public disclosure of its financial results for the prior period occurs
on a Trading Day more than four (4) hours before the NASDAQ closes for trading, then
such date of disclosure shall be considered the first Trading Day following such public disclosure; |
| · | All
trades are subject to prior review; |
| · | The
Window Group must submit a request for approval in a form set forth in Annex B hereto
from the Company’s Chief Financial Officer before making any trade in Company securities;
requests for approval of trades by the Chief Financial Officer should be submitted to the
Chief Legal Counsel or an officer with similar duties; and |
| · | No
trading is permitted outside the Window except for reasons of exceptional personal hardship
and subject to prior review by the Chief Financial Officer; provided that, if the Chief Financial
Officer wishes to trade outside the Window, it shall be subject to prior review by the Chief
Legal Counsel or an officer with similar duties. |
“Trading Day” is
defined as a day on which the NASDAQ is open for trading. Except for public holidays in the U.S., NASDAQ’s regular trading hours
are from 9:30 a.m. to 4:00 p.m., New York City time, Monday through Friday;
The
foregoing Window Group restrictions do not apply to transactions pursuant to written plans for trading securities that comply with Rule 10b5-1
under the Exchange Act (“10b5-1 Plans”) described
in Annex A hereto. However, Window Group members may not enter into, amend or terminate a 10b5-1 Plan relating to Company securities
without the prior approval of Chief Financial Officer, which will only be given during a Window period.
| 6. | Ad
Hoc Trading Freeze. Chief Financial Officer may from time to time impose an
ad hoc trading freeze which may vary in length on selected directors, executive officers,
consultants, and employees of the Company and certain
other persons, due to significant unannounced corporate developments. The imposition, modification
and lifting of any trading freeze shall be communicated to the affected persons
in writing by the Company’s responsible officer.
No reasons may be provided for the imposition of any trading freezes, and the imposition,
modification and lifting of any trading freeze itself may constitute material non-public
information that should not be communicated. No trading by the affected person(s) is
permitted during the trading freeze except for trades pursuant to an existing 10b5-1 Plan
adopted by the affected person(s), or for reasons of exceptional personal hardship and subject
to prior approval by the responsible officer. |
IN SUMMARY, EVERY EMPLOYEE, CONSULTANT,
DIRECTOR AND OFFICER OF THE COMPANY IS SUBJECT TO TRADING RESTRICTIONS WHEN IN POSSESSION OF INSIDE INFORMATION REGARDING THE COMPANY.
IN ADDITION, OFFICERS, DIRECTORS, AND OTHER MEMBERS OF THE WINDOW GROUP ARE SUBJECT TO PARAGRAPH 5 ABOVE RESTRICTING THEIR TRADING TO
WINDOW PERIODS AND REQUIRING PRE-CLEARANCE.
YOU MUST PROMPTLY REPORT TO THE CHIEF FINANCIAL
OFFICER ANY TRADING IN THE COMPANY’S SECURITIES BY ANYONE OR DISCLOSURE OF INSIDE INFORMATION BY COMPANY PERSONNEL THAT YOU HAVE
REASON TO BELIEVE MAY VIOLATE THIS STATEMENT OR THE SECURITIES LAWS OF THE UNITED STATES.
| III. | OTHER
LIMITATIONS ON SECURITIES TRANSACTIONS |
A.
Public Resales – Rule 144.
The U.S. Securities Act (the “Securities
Act”) requires every person who offers or sells a security to register such transaction with the SEC unless an exemption from
registration is available. Rule 144 under the Securities Act is the exemption typically relied upon for (a) public resales
by any person of “restricted securities” (i.e., unregistered securities acquired in a private offering or sale) and
(b) public resales by directors, officers and other control persons of a company (known as “affiliates”) of any
of the company’s securities, whether restricted or unrestricted.
The exemption in Rule 144 may only be relied
upon if certain conditions are met. These conditions vary based upon whether the Company has been subject to the SEC’s reporting
requirements for 90 days (and is therefore a “reporting company” for purposes of the rule) and whether the person seeking
to sell the securities is an affiliate or not.
| 1. | Holding
Period. Restricted securities issued by a reporting company (i.e., a company that
has been subject to the SEC’s reporting requirements for at least 90 days) must be
held and fully paid for a period of six (6) months prior to their sale. Restricted securities
issued by a non-reporting company are subject to a one-year holding period. The holding period
requirement does not apply to securities held by affiliates that were acquired either in
the open market or in a public offering of securities registered under the Securities Act.
Generally, if the seller acquired the securities from
someone other than the Company or an affiliate of the Company, the holding period of the
person from whom the seller acquired such securities can be “tacked” to the seller’s
holding period in determining if the holding period has been satisfied. |
| 2. | Current Public Information.
Current information about the Company must be publicly available before the sale can be made.
The Company’s periodic reports filed with the SEC ordinarily satisfy this requirement.
If the seller is not an affiliate of the Company issuing the securities (and has not been
an affiliate for at least three (3) months) and one (1) year has passed since the
securities were acquired from the issuer or an affiliate of the issuer (whichever is later),
the seller can sell the securities without regard to the current public information requirement. |
| 3. | Rule 144
also imposes the following additional conditions on
sales by persons who are “affiliates.” A person or entity is considered an “affiliate,”
and therefore subject to these additional conditions, if it is currently an affiliate or
has been an affiliate within the previous three (3) months: |
| ¨ | Volume
Limitations. The amount of debt securities which can be sold by an affiliate during any
three-month period cannot exceed 10% of a tranche (or class when the securities are non-participatory
preferred stock), together with all sales of securities of the same tranche sold for the
account of the affiliate. The amount of equity securities that can be sold by an affiliate
during any three-month period cannot exceed the greater of (a) one percent of the outstanding
shares of the class or (b) the average weekly reported trading volume for shares of
the class during the four (4) calendar weeks preceding the time the order to sell is
received by the broker or executed directly with a market maker. |
| · | Manner
of Sale. Equity securities held by affiliates must be sold in unsolicited brokers’
transactions, directly to a market-maker
or in riskless principal transactions. |
| · | Notice
of Sale. An affiliate seller must file a notice of the proposed sale with the SEC at
the time the order to sell is placed with the broker, unless the amount to be sold neither
exceeds 5,000 shares nor involves
sale proceeds greater than $50,000. See Section D below. |
Bona fide gifts
are not deemed to involve sales of shares for purposes of Rule 144, so they can be made at any time without limitation on the amount
of the gift. Donees who receive restricted securities from an affiliate generally will be subject to the same restrictions under Rule 144
that would have applied to the donor, depending on the circumstances.
Directors and officers also may sell securities
in a private transaction without registration. Although there is no statutory provision or SEC rule expressly dealing with private
sales, the general view is that such sales can safely be made by affiliates if the party acquiring the securities understands he or she
is acquiring restricted securities that must be held for at least six (6) months (if issued by a reporting company that meets the
current public information requirements) or one (1) year (if issued by a non-reporting company) before the securities will be eligible
for resale to the public under Rule 144. Private resales raise certain documentation and other issues and must be reviewed in advance
by the Company’s Chief Financial Officer.
| C. | Restrictions
on Purchases of Company Securities. |
In order to prevent market manipulation, the
SEC adopted Regulation M under the Exchange Act. Regulation M generally restricts the Company or any of its affiliates from buying Company
stock, including as part of a share buyback program, in the open market during certain periods while a distribution, such as a public
offering, is taking place. You should consult with the Company’s Chief Financial Officer, if you desire to make purchases of Company
stock during any period that the Company is making conducting an offering or buying shares from the public.
| 1. | Schedule 13D and 13G. Section 13(d) of
the Exchange Act requires the filing of a statement on Schedule 13D (or on Schedule 13G, in certain limited circumstances) by any person
or group which acquires beneficial ownership of more than five percent of a class of equity securities registered under the Exchange
Act. The threshold for reporting is met if the stock owned, when coupled with the amount of stock
subject to options exercisable within 60 days, exceeds the five percent limit. |
A report on Schedule 13D is required
to be filed with the SEC and submitted to the Company within ten (10) days after the reporting threshold is reached. If a material
change occurs in the facts set forth in the Schedule 13D, such as an increase or decrease of one percent or more in the percentage of
stock beneficially owned, an amendment disclosing the change must be filed promptly. A decrease in beneficial ownership to less than
five percent is per se material and must be reported.
A limited
category of persons (such as banks, broker-dealers and insurance companies) may file on Schedule 13G, which is a much-abbreviated version
of Schedule 13D, as long as the securities were acquired in the ordinary course of business and not with the purpose or effect of changing
or influencing the control of the issuer. You should ensure a timely submission of a report on Schedule 13G if the reporting threshold
is reached.
A person
is deemed the beneficial owner of securities for purposes of Section 13(d) if such person has or shares voting power (i.e.,
the power to vote or direct the voting of the securities) or dispositive power (i.e., the power to sell or direct the sale of
the securities). A person filing a Schedule 13D or 13G may disclaim beneficial ownership of any securities attributed to him or
her if he or she believes there is a reasonable basis for doing so.
| 2. | Form 144.
As described above under the discussion of Rule 144, an affiliate seller relying
on Rule 144 must file a notice of proposed sale with the SEC at the time the
order to sell is placed with the broker unless the amount to be sold during any period of
three (3) months immediately before the sale neither exceeds 5,000 shares nor involves
sale proceeds greater than $50,000. |
Annex A
INTRODUCTION OF 10B5-1 PLANS
All 10b5-1 Plans entered into by any member of
the Window Group (each, a “Window Group Member”) and any amendment, suspension or termination must comply with Rule 10b5-1
of the Exchange Act, this Statement and other Company policies and must meet the following conditions. Capitalized terms not defined
herein shall have the meanings given to them under this Statement.
Overview of 10b5-1 Plans
Under Rule 10b5-1, an insider who regularly
possesses material non-public information but who nonetheless wish to buy or sell the issuer’s securities may establish an affirmative
defense to an illegal insider trading charge by adopting a written plan to buy or sell at a time when they are not in possession of material
non-public information, i.e. a 10b5-1 Plan. A 10b51 Plan typically takes the form of a contract between the insider and his or
her broker.
A 10b5-1 Plan must be entered into at a time
when the insider has no material non-public information about the issuer or its securities (even if no trades will occur until after
the release of the material non-public information). The plan must:
| 1. | specify the amount, price (which may include
a limit price) and specific dates of purchases or sales; or |
| 2. | include a formula or similar method for determining
amount, price and date; or |
| 3. | give the broker the exclusive right to determine
whether, how and when to make purchases and sales, as long as the broker does so without
being aware of material nonpublic information at the time the trades are made. |
Participants
The
Window Group Members are eligible to adopt a 10b5-1 Plan.
Plan and Approval
The
10b5-1 Plan must be in writing and signed by the Window Group Member,
and the Window Group Member must, after adopting the plan with the Chief
Financial Officer’s prior approval, provide a copy to the Company’s legal or IR department. The Company shall keep a copy
of each 10b5-1 Plan in its files. The form of each 10b5-1 Plan and any subsequent amendment must be consistent with these guidelines
set forth under this Statement. Each 10b5-1 Plan must be approved in writing by the Chief Financial Officer prior to the adoption, amendment,
suspension or termination of such plan. A 10b5-1 Plan must not permit a Window Group Member to
exercise any subsequent influence over how, when or whether to effect purchases or sales. Sales under a 10b5-1 Plan must be executed
via a broker selected by the person(s) establishing the plan.
The
Window Group Member must act in good faith with respect to a 10b5-1 Plan
when the plan is adopted and for the duration of the plan,
and must not enter into a 10b5-1 Plan as part of a plan or scheme to evade the prohibitions of Rule 10b-5. In addition, each 10b5-1
Plan must include a representation in writing by the Window Group Member certifying
that (a) such person is not in possession of material non-public information about the Company or its securities, and (b) the
10b5-1 Plan is being adopted in good faith and not as part of a plan to evade the prohibitions of Rule 10b-5.
Timing and Term of Plan; Cooling-Off Period
Each
10b5-1 Plan must be adopted (a) during an open trading Window under this Statement,
and (b) when the Window Group Member does not otherwise possess
material non-public information about the Company. Each 10b5-1 Plan must provide for delayed effectiveness after adoption or amendment
(a “Cooling-Off Period”). For Window Group Members who
are directors or officers, each 10b5-1 Plan must specify that trades may not execute under the 10b5-1 Plan until the later of (a) 90
days after the date of adoption or amendment of the 10b51 Plan; and (b) two (2) business days following the Company’s
filing of a quarterly, semi-annual or annual report covering the financial reporting period in which the 10b5-1 Plan was adopted or amended,
but in no event later than 120 days after the date of adoption or amendment of the 10b5-1 Plan. For the avoidance of doubt, for these
10b5-1 Plans to be adopted by directors or officers, the Cooling-Off Period may then not end until two (2) business days after the
filing of the Form 20-F, even if the Company otherwise opens its trading Window after the fourth quarter earnings release has been
issued and before the Form 20-F is filed. For all other Window Group Members,
each 10b5-1 Plan must specify that trades may not execute under the 10b5-1 Plan for a period of at least 30 days after the date of adoption
or amendment of the 10b5-1 Plan.
Plan Specifications
Discretion Regarding Trades. The 10b5-1 Plan
must either (a) specify the amount of Company securities to be purchased or sold and the price at which and the date on which the
Company securities are to be purchased or sold, or (b) specify or set an objective formula or algorithm for determining the amount
of Company securities to be purchased or sold and the price at which and the date on which Company securities are to be purchased or
sold.
Amendment, Suspension and Termination
Amendments,
suspensions, and terminations of 10b5-1 Plans must be approved in advance in writing by Chief Financial Officer. In addition, a Window
Group Member may voluntarily amend a 10b5-1 Plan only (a) during
an open trading Window under this Statement and (b) when such Window
Group Member does not otherwise possess material non-public information
about the Company. Window Group Members may make amendments to 10b5-1
Plans without triggering a Cooling-Off Period so long as the amendment does not change the pricing provisions of the 10b5-1 Plan, the
amount of securities covered under the 10b5-1 Plan or the timing of trades under the 10b5-1 Plan, or where a broker executing trades
on behalf of the Window Group Members is substituted by a different broker
(so long as the purchase or sales instructions remain the same).
Mandatory Suspension
Each
10b5-1 Plan must provide for suspension of trades under such plan if legal, regulatory or contractual restrictions are imposed on the
Window Group Members, or if this Statement are amended, or other events
occur, that would prohibit sales under such 10b5-1 Plan.
Sales to Cover
A
Window Group Member may have only one 10b5-1 Plan in effect at any time,
except that a written, irrevocable election (an “Election”) by a Window Group Member to
sell a portion of Company securities as necessary to satisfy statutory tax withholding obligations arising solely from the vesting of
compensatory awards (not including options) (“Sales to Cover”) is permitted even if not included in the directions
in the Window Group Member’s 10b5-1 Plan, provided that (a) the
Election is made during an open trading Window under this Statement,
(b) at the time of the Election, the Window Group Member is not
aware of any material non-public information with respect to the Company or Company securities, (c) the Sales to Cover are made
in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5, (d) the Window Group Member
does not have, and will not attempt to exercise, authority, influence or control
over any such Sales to Cover, and (e) the Election contains appropriate representations as to clauses (b)-(d).
No Overlapping Plans
A
Window Group Member may adopt a new 10b5-1 Plan to replace an existing
10b5-1 Plan before the scheduled termination date of such existing 10b5-1 Plan, so long as the first scheduled trade under the new 10b5-1
Plan does not occur until after all trades under the existing 10b5-1 Plan are completed or expire without execution (subject to any Cooling-Off
Periods).
However,
where the first trade under a later-commencing plan is scheduled during what would have been the Cooling-off Period for that plan assuming
the termination date of the earlier-commencing plan were deemed to be the date of adoption of the later-commencing plan, then Rule 10b5-1
would not be available for the later-commencing plan. For example, a Window Group Member who
is not an officer or director has in place an existing 10b5-1 Plan with a scheduled date for the latest authorized trade of May 31,
2023. On May 1, 2023, that Window Group Member adopts a later-commencing
plan, intended to qualify for the affirmative defense under Rule 10b5-1, with a scheduled date for the first authorized trade of
June 1, 2023. If that Window Group Member terminates the earlier-commencing
plan on May 15, the later-commencing plan will not receive the benefit of the affirmative defense, because June 1 is within
30 days of May 15, the date of termination of the earlier-commencing plan, and thus June 1 is during the “effective cooling-off
period”. However, if the later-commencing plan were scheduled to begin trading on July 1, 2023, it could still receive the
benefit of the affirmative defense because July 1, 2023 is more than 30 days after May 15 and thus is outside the “effective
cooling-off period”.
A series of separate contracts with different
brokers to execute trades under a 10b5-1 Plan may be treated as a single plan, provided the contracts as a whole meet the conditions
under Rule 10b5-1, and provided further that any amendment of one contract is treated as an amendment of all of the contracts under
the plan.
Limitation on Single-Trade Arrangements
In any 12-month period, a Window Group Member
is limited to one “single-trade plan” — one designed to effect the open market purchase or sale of the total amount
of the securities subject to the plan as a single transaction. The following do not constitute single-trade plans:
(a) a 10b5-1 Plan that gives discretion
to an agent over whether to execute the 10b5-1 Plan as a single transaction or that provides the agent’s future acts depend on
facts not known at the time the 10b5-1 Plan’s adoption and might reasonably result in multiple transactions and
(b) Sales to Cover.
No Hedging
As
described in this Statement, individuals subject to this Statement are
prohibited from engaging in any hedging or similar transactions designed to decrease the risks associated with holding Company Securities.
Further to this end, a Window Group Member adopting a 10b5-1 Plan may
not have entered into or altered a corresponding or hedging transaction or position with respect to the securities subject to the 10b5-1
Plan and must agree not to enter into any such transaction while the 10b5-1 Plan is in effect.
Compliance with Rule 144
All sales made under a 10b5-1 Plan must be made
in reliance on an exemption from registration under the Securities Act and may not be made pursuant to a registration statement. To the
extent that sales made under a 10b5-1 Plan are made pursuant to Rule 144 under the Securities Act, such 10b5-1 Plan must provide
for specific procedures to comply with Rule 144, including the filing of Forms 144.
Annex B
FORM OF REQUEST FOR APPROVAL TO TRADE
IN THE
SECURITIES OF VNET GROUP, INC.
To: Chief Financial Officer
From:______________________ (Print Name)
I hereby request approval for myself (or a member
of my immediate family or household or a family member whose transactions regarding securities of VNET Group, Inc. are directed
by me or are subject to my influence or control) to execute the following transaction relating to the securities of VNET Group, Inc.
Type of transaction (check one):
¨ PURCHASE
¨ SALE
¨ EXERCISE
OPTION (AND SELL SHARES)
¨ OTHER
Securities involved in transaction: |
|
|
Name of beneficial owner if other than yourself: |
|
|
Relationship of beneficial owner to yourself: |
|
|
Signature:____________________________________________________ Date:
___________________________
This Authorization is valid until the earlier
of thirty (30) calendar days after the date of this Approval or until the commencement of a “blackout” period.
Schedule 2
Listco Standard Conversion
Procedures
May 10, 2024
VNET Group, Inc.
Procedures for Conversion of Class A Ordinary
Shares into ADSs
Parties Involved and Contact Information:
| · | Shareholder who requests
to convert Class A ordinary shares into ADSs for sale (“Seller”) |
| · | Seller’s broker
who will handle the sale of the converted ADSs (“Broker”) |
| · | VNET Group, Inc.
(“VNET”) (Contact: lin.weiyan@vnet.com) |
Mail Address:
Guanjie Building Southeast 1st Floor,
10# Jiuxianqiao East Road, Chaoyang District,
Beijing 100016 People’s Republic of China
Attention: Lin, weiyan
T: +86 185 0040 6966
| · | Cooley LLP (“Cooley”),
U.S. counsel to VNET (Contact: Will Cai at |
wcai@cooley.com;
Jie Zhang at jzhang@cooley.com
Mail Address:
c/o Suites 3501-3505, 35/F Two Exchange Square
8 Connaught Place
Central, Hong Kong
Attn: Will Cai
T: +852 3758 1210
F: +852 3014 7818
| · | Maples Funds Services
(Cayman) Limited, registrar and transfer agent of VNET |
(“MFS”)
Mail Address:
Maples Fund Services (Cayman) Limited
c/o Maples Fund Services (Asia) Limited
16th Floor, Central Plaza, 18 Harbour Road
Wanchai, Hong Kong
Attn: Chris Liu/ Tim Lee/ Gary Lau
Email:
#MFS-MCCS@maples.com;
InvestorServicesHK@maples.com
Tel: +852- 3690 7617 /+852- 3690 7620/ +852- 3690 7614/
+852- 3690 7677
| · | Citibank,
N.A., depositary bank (“Citi”) (Contact: Hank Hui (hank.hui@citi.com, |
dr.china@citi.com))
Mail Address:
Citibank, N.A., as depositary
388 Greenwich Street
New York, NY10013
Attention: Hank Hui, ADR Department
T: (212) 816-2194
F: (212) 816-6865
| · | Citi’s
Hong Kong custodian (“Custodian”) (Contact: Eugene Tang / Ip Kwai Tong
/ |
hkadroperations@citi.com)
Mail Address:
Securities Services Operations, Citibank Hong Kong
9/F Citi Tower
One Bay East
83 Hoi Bun Road, Kwun Tong,
Kowloon, Hong Kong.
Attention: |
|
Mr. Ip Kwai Tong |
852 2306 8381 |
Mr. Eugene Tang |
852 2306 7035 |
Mr. Norman Shing |
852 2306 6852 |
Mr. Anthony Lam |
852 2306 7347 |
Affiliate Conversion Procedure
Documents Required for Affiliate Conversion:
| (a) | one
copy of the instrument of transfer form (Annex A), which
must be cosigned by a witness, and the Share Conversion Form (Annex A1) if
the seller proposes to convert Class B common shares |
| (b) | one
copy of the Rule 144 Conversion ADS Delivery Instruction (Annex B) |
| (c) | one
copy of the Rule 144 affiliate representations letter (Annex C) |
| (d) | one
copy of the Form 144 Notice of Proposed Sale (“Form 144,”
to be provided by the Seller’s Broker) |
| (e) | one
copy of the broker’s representation letter, to be provided by Seller’s
Broker (Annex D) |
| (f) | Opinion
of US Counsel [for transactions with value of US$5,000,000 or above, as indicated on the
applicable Form 144]1 |
MFS will also require the original share certificate(s) representing
the shares that are to be converted for cancellation.
VNET:
| (g) | one
copy of the Issuer Consent Letter (Annex G) |
| (h) | one
copy of the confirmation letter for share transfers (Annex E) |
| (i) | one
copy of the Officer’s Certificate (Annex F) |
Generally:
The Company is coordinating the conversion and the receipt
of relevant documents because most of the times the shareholders would not know where to beginning with. The Company should be notified
first (before the Depositary Bank or anyone else) when an existing shareholder wants to convert.
Process
Flow:
Working Day 1:
| (j) | Seller
must obtain a pre-clearance from VNET for the proposed conversion and sale. |
| (ii) | Seller emails scanned copies of documents (a), (b), (c), (f)
and the share certificate in Seller’s name, if any, to VNET, Cooley, MFS,
Citibank and Custodian. |
| (iii) | Seller sends the original share certificate, if any, to MFS by
courier and emails the related tracking number to MFS. |
1 For
transactions at or below US$5,000,000, as indicated on the applicable Form 144, the Depositary will rely on Rule 144 omnibus
opinion from Depositary’s counsel.
| (iv) | Broker emails a scanned copy of document (e) to VNET, Cooley,
Citibank and Custodian. Broker also emails a draft Form 144 (document (d)) that
it will file on behalf of Seller to VNET and Cooley for review and comment. |
| (v) | VNET sends a scanned copy of document (h) and (i) to MFS (copying
Cooley) via email. [Note: To facilitate the conversion process, VNET will provide a small
number of pre-signed share certificates in the name of Citi (Nominees) Limited to MFS to
be used for subsequent ADS conversions.] |
| (vi) | VNET sends scanned copy of document (g) to Citi via email. |
Working Day 1 + 1 (or later, depending on when MFS can receive
the required original documents and then forward those required by Citi to Custodian)
| (vii) | After receiving the scanned
copies of (a) and (h), and the original share certificate in Seller’s name (if
any), MFS updates the Register of Members, prepares a new share certificate in the name of
Citi (Nominees) Limited and, if applicable, prepares a new share certificate representing
the balance of the Class A ordinary shares to be held by Seller after the sale. MFS
then forwards the executed original share certificate in the name of Citi (Nominees)
Limited and a certified extract of the Register
of Members to Custodian before 3:00 p.m. (If MFS has received (a), (h), and
the original share certificate by 10:00 a.m. that business day, it will deliver the
necessary documents to Custodian by 3:00 p.m. on the same business day. If MFS has received
(a), (h), and the original share certificate after 10:00 a.m. that business day, it
will process the transaction and deliver the necessary documents to Custodian on a best effort
basis.) MFS also sends a new share certificate representing the balance of the Class A
ordinary shares to be held by Seller after the sale, if applicable, to VNET
for signature. |
| (viii) | Seller instructs Broker to input “receive” instructions
for the requisite number of ADSs via DTC. |
| (ix) | Custodian and Citi will cooperate for the delivery of ADSs to Seller’s
DTC accounts promptly as practicable. |
| (x) | Citi
will charge the ADS issuance fee of US$0.05 per ADS. The issuance fee could be settled by
DVP (delivery versus payment, i.e. the ADSs will be delivered to the broker’s DTC account
against payment) or a separate wiring, in case the latter is preferred, below are
the payment details: |
ABA: 021 000 089
Account No: 36859028
BIC Code: CITIUS33ADR
Beneficiary Bank: Citibank N.A.
Beneficiary Account Name: Citibank N.A.
Attention: Citi Depositary Receipt Services
Re: DR Issuance fee for VNET from XXX (Seller’s name)
Address:
480 Washington Blvd. 30TH FLOOR
City: Jersey City
State: NJ
Zip Code: 07310
[Note:
If issuance fees are to be waived, VNET to send waiver request to Citibank N.A., as depositary (dr.china@citi.com)
of Citibank prior to Step (ix).]
| (xi) | No later than the time of placing of a sale order for Seller, Broker
transmits three original signed Form 144 (document (d)) to SEC and one scanned
copy to Nasdaq on behalf of Seller and emails a scanned copy of Form 144 to VNET,
Cooley, Citi and Custodian. |
| (xii) | VNET forwards to Seller the new signed share certificate representing
the balance of the Class A ordinary shares held by Seller. |
Non-Affiliate Conversion Procedure
Documents Required for non-Affiliate Conversion:
| (a) | one
copy of the instrument of transfer form (Annex A), which
must be cosigned by a witness |
| (b) | one
copy of the letter of transmittal for non-affiliates (Annex H) |
MFS will also require the original share certificate(s) representing
the shares that are to be converted for cancellation.
VNET:
| (c) | one
copy of the confirmation letter for share transfers (Annex E) |
| (d) | one
copy of the Issuer Consent Letter (Annex G) |
Process
Flow:
Working
Day 1:
| (i) | Seller must obtain a pre-clearance from VNET for the proposed conversion
and sale. |
| (ii) | Seller emails scanned copies of documents (a), (b) and
the share certificate in Seller’s name, if any, to VNET, Cooley, MFS, Citibank
and Custodian. |
| (iii) | Seller sends the original share certificate, if any, to MFS by
courier and emails the related tracking number to MFS. |
| (iv) | VNET sends a scanned copy of document (c) to MFS (copying Cooley)
via email. [Note: To facilitate the conversion process, VNET will provide a small number
of pre-signed share certificates in the name of Citi (Nominees) Limited to MFS to be used
for subsequent ADS conversions.] |
| (v) | VNET sends scanned copy of document (d) to Citi via email. |
Working Day 1 + 1 (or later, depending on when MFS can
receive the required documents and then forward those required by Citi to Custodian)
| (vi) | After receiving the scanned copies of (a) and (c), and the
original share certificate in Seller’s name (if any), MFS updates the Register of Members,
prepares a new share certificate in the name of Citi (Nominees) Limited and, if applicable,
prepares a new share certificate representing the balance of the Class A ordinary shares
to be held by Seller after the sale. MFS then forwards the executed original share certificate
in the name of Citi (Nominees) Limited and a certified extract of the Register of
Members to Custodian before 3:00 p.m. (If MFS has received (a), (c), and the original
share certificate by 10:00 a.m. that business day, it will deliver the necessary documents
to Custodian by 3:00 p.m. on the same business day. |
If MFS has received (a), (c), and the original share certificate
after 10:00 a.m. that business day, it will process the transaction and deliver the necessary documents to Custodian on a best effort
basis.) MFS also sends a new share certificate representing the balance of the Class A ordinary shares to be held by Seller after
the sale, if applicable, to VNET for signature.
| (vii) | Seller instructs Broker to input “receive” instructions
for the requisite number of ADSs via DTC. |
| (viii) | Custodian and Citi will cooperate for the delivery of ADSs to Seller’s
DTC accounts promptly as practicable. |
| (ix) | Citi
will charge the ADS issuance fee of US$0.05 per ADS. The issuance fee could be settled by
DVP (delivery versus payment, i.e. the ADSs will be delivered to the broker’s DTC account
against payment) or a separate wiring, in case the latter is preferred, below are
the payment details: |
ABA: 021 000 089
Account No: 36859028
BIC Code: CITIUS33ADR
Beneficiary Bank: Citibank N.A.
Beneficiary Account Name: Citibank N.A.
Attention: Citi Depositary Receipt Services
Re: DR Issuance fee for VNET from XXX (Seller’s name)
Address:
480 Washington Blvd. 30TH FLOOR
City: Jersey City
State: NJ
Zip Code: 07310
| (x) | VNET forwards to Seller the new signed share certificate representing
the balance of the Class A ordinary shares held by Seller. |
Annex A
Instrument of Transfer
INSTRUMENT OF TRANSFER
The undersigned, [shareholder name] (the
“Transferor”), does hereby transfer to Citi (Nominees) Limited (the “Transferee”) [number of shares] Class A
ordinary shares standing in my name in the undertaking called
VNET Group, Inc.
to hold the same unto the Transferee. |
|
|
|
Signed by the Transferor: |
|
|
|
|
|
In the presence of: |
|
|
|
Witness to the above signature |
|
Dated:
Annex A1
Share Conversion Form
SHARE CONVERSION FORM
The undersigned,____________________ (the “B Shareholder”),
hereby elects to convert________________ Class B Ordinary Shares standing in its name in the company called VNET Group, Inc. (the
“Company”) into an equal number of Class A Ordinary Shares of the Company. The original share certificate in
the name of the B Shareholder, if any, is enclosed for the Company’s cancellation.
Signed by the B Shareholder:
Dated: 20___
Annex B
Rule 144 Conversion ADS Delivery
The delivery instruction below should include DTC account number,
beneficiary’s name, beneficiary’s account number and any other information that is required for the depositary to make successful
ADS delivery.
Name
of Depositor: |
|
Number
of Deposit Class A Ordinary Shares: |
Shares |
|
Number
of ADSs to be issued and delivered: |
ADSs |
Delivery
Instructions for the ADSs |
DTC
No.:
DTC Name:
Beneficiary A/C No.:
Beneficiary A/C Name:
Further information (if any):
Broker Contact Details (if any): |
|
Authorized Signature |
|
Date: |
|
Name: |
|
Title: |
|
Shareholder: |
Annex C
Rule 144 Affiliate Representation
Affiliate Representations Letter
_________________, 20
VNET Group, Inc.
Guanjie Building Southeast 1st Floor
10# Jiuxianqiao East Road
Chaoyang District, Beijing 100016
People’s Republic of China
Securities Services Operations, Citibank Hong Kong
9/F Citi Tower
One Bay East
83 Hoi Bun Road
Kwun Tong, Kowloon, Hong Kong.
As Custodian for Citibank, N.A.
Citibank, N.A., as depositary
388 Greenwich Street
New York, NY10013
Attn: ADR Department
Cooley LLP
c/o Suites 3501-3505, 35/F
Two Exchange Square
8 Connaught Place
Central, Hong Kong
Attn: Will Cai
Re: Sale
of___________Class A Ordinary Shares (the “Shares”) of VNET Group, Inc. (the
“Company”) in the form of American Depositary Shares (the “ADSs”)
Dear Sirs:
The undersigned refers to that
LETTER OF TRANSMITTAL (the “Letter of Transmittal”) dated on or about the date hereof signed by the undersigned in connection
with the deposit of Shares of the Company.
The undersigned proposes to sell the Shares in
the form of ADSs pursuant to Rule 144 under the U.S. Securities Act of 1933, as amended (the “Act”). The undersigned
may be deemed as an “affiliate” of the Company as that term is defined in Rule 144(a)(1) under the Act. The undersigned
confirms and certifies to each of you that the statements made herein and the certifications made in the Letter of Transmittal are true
and complete, and represents to and agrees with you that:
1. The
undersigned does not know or have any reason to believe that the Company has not complied with the reporting requirements contained in
Rule 144(c)(1).
2. A
minimum of six months has elapsed since the date of acquisition of the Shares and payment of the full purchase price for the Shares by
the undersigned.
3. At
the time of any sale of the Shares for the account of the undersigned, the number of shares of the Company’s Class A ordinary
shares sold by the undersigned or for the undersigned’s account and by or for the account of any person whose sales are required
by paragraph (a)(2) and paragraph (e)(3) of Rule 144 to be aggregated with sales by or for the undersigned (other than
shares sold pursuant to an effective registration statement under the Act, an exemption provided by Regulation A under the Act, an exemption
contained in Section 4 of the Act, or pursuant to Regulation S in an offshore transaction) has not exceeded, and will not exceed,
the amounts permitted by Rule 144(e).
4. The
undersigned has not solicited or arranged for the solicitation of, and will not solicit or arrange for the solicitation of, orders to
buy the Shares in anticipation of or in connection with any sale or proposed sale of the Shares, and each such sale shall be made in
accordance with Rule 144(f).
5. The
undersigned has not made, and will not make, any payment in connection with the offering or sale of the Shares to any person other than
the registered broker-dealer which executes the order to sell the Shares (the “Broker”).
6. To
the extent the Shares and any other Class A ordinary shares of the Company sold in reliance on Rule 144 under the Securities
Act exceed 5,000 shares or have an aggregate sale price in excess of US$50,000 during any period of three months, the undersigned will
file or cause to be filed a duly executed Form 144 electronically with the United States Securities and Exchange Commission pursuant
to Rule 144(h) concurrently with either the placing with the Broker of an order to execute the sale of the Shares and ADSs
or the execution directly with a market maker of such a sale.
7. It
is the bona fide intention of the undersigned to sell the Shares within a reasonable time after the filing of the Form 144 referred
to in paragraph 6 above.
8. None
of the Shares is or will be subject to any agreement granting any pledge, lien, mortgage, hypothecation, security interest, charge, option
or encumbrance, other than those which may have been entered into between the undersigned and the Broker.
9. None
of the Shares is subject to any contractual restrictions on transfer thereof.
10. The
undersigned does not know any material adverse information with respect to the current and prospective operations of the Company that
has not been publicly disclosed.
11. The
undersigned is not acting, and will not act, in concert with any person or entity with respect to the sale of the Shares.
12. The
undersigned has read all of the representations and warranties applicable to it that are set forth in the Deposit Agreement dated as
of April 20, 2011 (the “Deposit Agreement”), by and among the Company, Citibank, N.A., as Depositary and all Holders
and Beneficial Owners from time to time of American Depositary Shares issued thereunder and confirms that the deposits to be made under
the Letter of Transmittal are being made in compliance with the provisions of the Deposit Agreement.
(Signature page to follow)
Sincerely yours, |
|
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[Please Print] |
|
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Name of Shareholder |
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Signed by: |
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Name: |
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Title: |
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Annex D
Broker’s Representation
______________________, 20
VNET Group, Inc.
Guanjie Building Southeast 1st Floor
10# Jiuxianqiao East Road
Chaoyang District, Beijing 100016
People’s Republic of China
Securities Services Operations, Citibank Hong Kong
9/F Citi Tower
One Bay East
83 Hoi Bun Road
Kwun Tong, Kowloon, Hong Kong.
As Custodian for Citibank, N.A.
Citibank, N.A., as depositary
388 Greenwich Street
New York, NY10013
Attn: ADR Department
Cooley LLP
c/o Suites 3501-3505, 35/F
Two Exchange Square
8 Connaught Place
Central, Hong Kong
Attn: Will Cai
Re: Sale
of_________American Depositary Shares (the “ADSs”; one ADS
represents six Class A Ordinary Share) of VNET Group, Inc. (the “Company”) Pursuant to Rule 144
Dear Sirs:
In
connection with the sale of the above-referenced ADSs by_______________(the “Seller”)
through_______________________(the “Broker”), a
registered broker-dealer, the Broker hereby represents to you, that:
| 1. | The Broker has done and will do no more than execute the order to sell the ADSs for the Seller in accordance with Rule 144(f) under
the Securities Act of 1933 (the “Act”); |
| 2. | The Broker has received or will receive no more than the usual and customary broker’s commission in connection with the sale
of the ADSs; |
| 3. | The Broker has not solicited or arranged for the solicitation of, and will not solicit or arrange for the solicitation of, customers’
orders to buy the ADSs in anticipation of or in connection with the sale of the ADSs by the Seller; and |
| 4. | After reasonable inquiry, the Broker is not aware of any circumstances indicating that (i) the Seller is an underwriter with
respect to the ADSs or that the sale of the ADSs is part of a distribution of securities for the Company; and (ii) the Seller is
acting in concert with any other shareholder of the Company with respect to the sale of the ADSs. |
Sincerely yours,
[BROKER’S NAME]
Annex E
Confirmation Letter
VNET Group, Inc.
Guanjie Building Southeast 1st Floor
10# Jiuxianqiao East Road
Chaoyang District, Beijing 100016
People’s Republic of China
To: |
Maples Fund Services (Cayman) Limited |
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c/o Maples Fund Services (Asia) Limited |
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16th Floor, Central Plaza, 18 Harbour Road, Wanchai, |
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Hong Kong |
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Attn: Chris Liu/ Tim Lee/ Gary Lau |
Date:
Dear Sirs,
VNET Group, Inc. (the “Company”)
Transfer of Class A Ordinary Shares
I hereby confirm, on behalf of the board of directors
of the Company, that you are instructed to register the transfer of Class A ordinary shares of the Company from the transferor(s) listed
in Exhibit A attached hereto to the transferees listed in Exhibit A attached hereto, upon receipt of the relevant signed instruments
of transfer and without seeking further confirmation on the respective transfer.
The Company will issue new share certificates accordingly. A copy of
the executed share certificate will be provided for your records.
The use of this letter was approved by written
resolutions of the directors of the Company passed on 23 September 2011.
Yours faithfully,
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Name: |
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Title: Director |
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For and on behalf of the Company |
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Exhibit A
Transferor(s) | Transferee(s) | Share Certificate No. |
Number of Class A
Ordinary Shares |
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Annex F
Officer’s Certificate
VNET Group, Inc.
OFFICER’S CERTIFICATE
I, [·] of VNET Group, Inc., an exempted
company with limited liability incorporated under the laws of the Cayman Island (the “Company”), do hereby certify that:
(a) | A registration has been made in the share register in the name of Citi (Nominees) Limited for [·] Class A ordinary shares,
which shares are represented by Certificate No. [·] registered in the name of Citi (Nominees) Limited, as depositary (the “Depositary”). |
(b) | Attached hereto as Exhibit A is a true, correct and complete specimen of the certificate representing Class A ordinary shares
of the Company duly authorized and validly issued in accordance with the constituent documents of the Company. |
(c) | The Class A ordinary shares referred to above are being deposited in accordance with the Deposit Agreement, dated as of April 20,
2011 by and among the Company, the Depositary and all Holders and Beneficial Owners of American Depositary Shares issued thereunder. |
(d) | Attached hereto as Exhibit B is a true and correct extract from Maples Fund Services (Asia) Limited showing the Depositary as
a member of the Company reflecting all Class A ordinary shares heretofore issued to the Depositary, and not otherwise cancelled by
the Depositary, including, without limitation, those Class A ordinary shares referred to in (a) above. |
IN WITNESS WHEREOF, I have duly executed and
delivered this Officer’s Certificate dated
of ______________ , 20 .
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VNET Group, Inc. |
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By: |
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Name: |
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Title: |
VNET Group, Inc.
Guanjie Building Southeast 1st Floor
10# Jiuxianqiao East Road
Chaoyang District, Beijing 100016
People’s Republic of China
[Date]
Securities Services Operations, Citibank Hong Kong
9/F Citi Tower
One Bay East
83 Hoi Bun Road
Kwun Tong, Kowloon, Hong Kong.
Citibank, N.A., as depositary
388 Greenwich Street
New York, NY10013
Attn: ADR Department
Ladies and Gentlemen:
VNET Group, Inc. (the “Company”)
hereby consents to the deposit into the ADR facility existing under the terms of the Deposit Agreement, dated as of April 20, 2011
(the “Deposit Agreement”), by and among the Company, Citibank, N.A., as Depositary, and the Holders and Beneficial
Owners of American Depositary Shares issued thereunder, by the person(s) listed below of the Shares set forth opposite their name
(none of which are “Restricted Securities” within the meaning given to such term in the Deposit Agreement).
VNET Group, Inc. |
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By: |
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Name: |
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Title: |
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Annex H
Letter of Transmittal for Non-Affiliates
Date:________________
Letter of Transmittal covering delivery of Class A ordinary shares
of VNET Group, Inc.
to Custodian and issuance of American Depositary Shares
by Citibank, N.A., New York
Gentlemen
We
deliver herewith certificates representing__________________ Class A ordinary shares of VNET
Group, Inc. (the “Company”) for deposit with you as Custodian pursuant to the terms of the American
Depositary Shares in respect of such Class A ordinary shares issued by Citibank, N.A., New York and we hereby request that
American Depositary Shares for such Class A ordinary shares be registered in the name of:
CEDE & Co.,
and be delivered to or upon the written order of:
DTCno.:_____________________________________________________________________
DTCName: ___________________________________________________________________
Beneficiary A/C no.: __________________________________________________________
Beneficiary A/C Name: ________________________________________________________
Further information (if any):
____________________________________________________
Broker Contact Details (if
any): _________________________________________________
We request you to so instruct Citibank, N.A., New York by airmail/cable
at our expense. In so doing, you will not be liable for mutilation, interruption, omissions, errors, or delays incurred in the mails,
or on the part of any telegraph, cable or wireless company, or any employee thereof, or through any cause beyond your control.
We represent that the certificates for Class A ordinary shares
delivered herewith are genuine, validly issued, fully paid and non-assessable and that we are authorized by the true owner thereof to
deposit the said certificates with you and we warrant that when said certificates are presented to the Company or its transfer agent for
transfer to the name of your nominee, such transfer will not be refused because of any defect in the form of documentation or signatures
on such certificates and the accompanying instruments of transfer received from us or by reason of any defect in the title we are purporting
to transfer to you. If any of the above representation prove to be false or incorrect, we will deliver to you certificates representing
Class A ordinary shares which will satisfy the above representations and warranties or, at your opinion, we will reimburse you for
any losses, liabilities or expenses incurred as a result thereof.
We hereby certify that: (1) neither the depositor nor the persons
on whose behalf securities are being presented for deposit against the issuance of American Depositary Shares is an “issuer”
of such securities or is directly or indirectly acting for such “issuer”; (2) neither the depositor nor such other persons
has purchased any of such securities from an “issuer” with a view to distribution or is proposing to offer or sell any of
such securities for an “issuer” in connection with the distribution of such securities; (3) neither the depositor nor
such other persons is participating, or has a direct or indirect participation, in any such undertaking or in the direct or indirect underwriting
of any such undertaking; (4) such securities do not constitute the whole or part of an unsold allotment to or subscription by a “dealer”,
as a participant in the distribution of such securities by the Company issuing the same or by or through an “underwriter”.
For the purposes of this certification the term “issuer”
includes not only the Company but also any person directly or indirectly controlling, controlled by or under direct or indirect common
control with the Company; the term “dealer” means any person who engages either for all or part of his time, directly or indirectly
as agent, broker, or principal, in the business of offering, buying, selling, or otherwise dealing or trading in securities issued by
another person; the term “underwriter” means any person who has purchased from the “issuer” the securities presented
for deposit with a view to, or offers or sells for the “issuer” in connection with, the distribution of any such securities,
or participates or has a direct or indirect participation in any such undertaking or participates or has a participation in the direct
or indirect underwriting of any such undertaking, but the term “underwriter” does not include a person whose interest is limited
to a commission from an underwriter or dealer not in excess of the usual and customary distributors’ or sellers’ commission.
Very truly yours,
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[Please Print] |
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Name of Shareholder |
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Signed by |
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Name: |
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Title: |
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EXECUTION COPY
21Vianet Group, Inc. – Amended and
Restated Restricted ADS Letter Agreement
As of January 26, 2021
Citibank, N.A. - ADR Department
388 Greenwich Street
New York, New York 10013
Restricted ADSs
Ladies
and Gentlemen:
Reference is made to (i) the
Deposit Agreement, dated as of April 20, 2011, as amended and supplemented from time to time (the “Deposit Agreement”),
by and among 21Vianet Group, Inc., a company organized under the laws of Cayman Islands (the “Company”), Citibank,
N.A., a national banking association (“Citibank”) organized and existing under the laws of the United States of America,
as Depositary (the “Depositary”), and all Holders and Beneficial Owners of American Depositary Shares (the “ADSs”)
issued thereunder, and (ii) the Restricted ADS Letter Agreement, dated as of July 24, 2012 (the “Restricted ADS Letter
Agreement”), by and between the Company and the Depositary. All capitalized terms used, but not otherwise defined herein, shall
have the meaning assigned thereto in the Deposit Agreement. This letter agreement (the “Amended and Restated Restricted ADS Letter
Agreement”) amends and restates the Restricted ADS Letter Agreement as of the date specified above.
The Company desires to update
the RADS procedures existing under the Restricted ADS Letter Agreement to enable certain investors in the Company, including Affiliates
of the Company, the names of which are to be provided to the Depositary from time to time (each, a "Restricted Holder"),
to hold Shares that constitute Restricted Securities as Restricted ADSs. The Depositary agrees to accommodate the issuance of Restricted
ADSs upon the terms set forth herein, provided that (a) the terms of deposit of the Restricted Securities for Restricted ADSs neither
(i) prejudice any substantial rights of existing Holders and Beneficial Owners of ADSs under the Deposit Agreement, nor (ii) violate
or conflict with any law, rule or administrative position applicable to the ADSs, and (b) the terms of the Deposit Agreement
are supplemented as set forth in this Amended and Restated Restricted ADS Letter Agreement to establish procedures for the deposit of
Restricted Securities by Restricted Holders.
The purpose and intent of this
Amended and Restated Restricted ADS Letter Agreement is to supplement the Deposit Agreement and to amend and restate the Restricted ADS
Letter Agreement for the purpose of accommodating (i) the issuance of Restricted ADSs to the Restricted Holders, (ii) the sale
or transfer of such Restricted ADSs, and (iii) certain ancillary transactions further described below. The Company and the Depositary
agree that this Amended and Restated Restricted ADS Letter Agreement shall
be filed as an exhibit to the Company's next Registration Statement on Form F-6 filed in respect of the ADSs under the Securities
Act, if any.
For good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Company and the Depositary hereby agree, notwithstanding the terms of
the Deposit Agreement and the Restricted ADS Letter Agreement, as follows:
1. Depositary
Procedures. The Company consents, under Section 2.3 of the
Deposit Agreement, to (i) the deposit by
the Company, or by, for, or on behalf of, each Restricted Holder, of the number of Shares specified in the applicable written request
contained in a Consent and Delivery Instruction (as hereinafter defined) delivered to the Depositary to accept the deposit of such Shares
(which request shall not be unreasonably denied) (the “Restricted Shares”) and (ii) the issuance and delivery
by the Depositary of the corresponding number of Restricted ADSs in respect thereof in the form of Uncertificated ADSs, upon the terms
set forth in Section 2.13 of the Deposit Agreement, as supplemented by this Amended and Restated Restricted ADS Letter Agreement,
to the Restricted Holders or their respective designees. The Restricted ADSs described in the immediately preceding sentence and the Restricted
Shares represented thereby are referred to herein as the “Designated Restricted ADSs” and the “Designated
Shares”, respectively. In connection with each deposit of Designated Shares (i) by the Company and request for issuance
of Designated Restricted ADSs, the Company shall deliver to the Depositary a duly completed and signed Consent and Delivery Instruction
substantially in the form of Exhibit A-1 hereto (each a “Consent and Delivery Instruction - Company”),
and (ii) by a Restricted Holder and request for issuance of Designated Restricted ADSs, the Restricted Holder shall be required to
deliver to the Depositary a duly completed and signed Consent and Delivery Instruction substantially in the form of Exhibit A-2
hereto (each a “Consent and Delivery Instruction – Restricted Holder” and together with a Consent and Delivery
Instruction – Company, a “Consent and Delivery Instruction”).
In furtherance of the foregoing,
the Company instructs the Depositary, and the Depositary agrees, upon the terms and subject to the conditions set forth in Section 2.14
of the Deposit Agreement as supplemented by this Amended and Restated Restricted ADS Letter Agreement, to (i) establish procedures
to enable (x) the deposit of the Designated Shares with the Custodian by the Company, or by, for, or on behalf of, the Restricted
Holders as a valid deposit of Shares under the Deposit Agreement in order to enable the issuance by the Depositary to the Restricted Holders
of Designated Restricted ADSs issued under the terms of this Amended and Restated Restricted ADS Letter Agreement upon deposit of Designated
Shares, and (y) the transfer of the Designated Restricted ADSs, the removal of the transfer and other restrictions with respect to
Designated Restricted ADSs in order to create unrestricted ADSs, and the withdrawal of the Designated Shares, in each case upon the terms
and conditions set forth in the Deposit Agreement as supplemented by the terms of this Amended and Restated Restricted ADS Letter Agreement,
and (ii) deliver an account statement (the “Account Statement”) to the Company and/or the Restricted Holders upon
the issuance of the Designated Restricted ADSs, in each case upon the terms set forth herein. Nothing contained in this Amended and Restated
Restricted ADS Letter Agreement shall in any way obligate the Depositary, or give authority to the Depositary, to accept any Shares other
than the Designated Shares described herein for deposit under the terms hereof.
2. Company
Assistance. The Company agrees to (i) provide commercially reasonable assistance
upon the request of and to the Depositary in the establishment of such procedures to enable the acceptance of the deposit by, for, or
on behalf of, the Restricted Holders of the Designated Shares, the issuance of Designated Restricted ADSs, the transfer of Designated
Restricted ADSs, the withdrawal of the Designated Shares and the conversion of Designated Restricted ADSs into freely transferable ADSs,
and (ii) take all commercially reasonable steps requested by the Depositary to ensure that the acceptance of the deposit of the
Designated Shares, the issuance of the Designated Restricted ADSs, the transfer of the Designated Restricted ADSs, the conversion of
Designated Restricted ADSs into freely transferable ADSs, and the withdrawal of Designated Shares, in each case upon the terms and conditions
set forth herein, do not prejudice any substantial existing rights of Holders or Beneficial Owners of ADSs and do not violate the provisions
of the Securities Act or any other applicable laws.
In furtherance of the foregoing,
the Company shall at the time of execution of this Amended and Restated Restricted ADS Letter Agreement cause (A) its U.S. counsel
to deliver an opinion to the Depositary as of the date hereof addressing the validity, binding nature and enforceability of the Company’s
obligations under this Amended and Restated Restricted ADS Letter Agreement under the laws of the State of New York, subject to customary
assumptions and qualifications, such opinion to be in form and substance reasonably satisfactory to the Depositary, and (B) its Cayman
Islands counsel to deliver an opinion to the Depositary as of the date hereof stating, inter alia, that (i) the Company has
duly authorized and executed this Amended and Restated Restricted ADS Letter Agreement, (ii) this Amended and Restated Restricted
ADS Letter Agreement constitutes a legal, valid and binding obligation of the Company under Cayman Islands law enforceable against the
Company upon its terms, (iii) all approvals required by Cayman Islands law to permit the deposit of Designated Shares under the Deposit
Agreement and this Restricted ADS Letter Agreement have been obtained, and (iv) the terms of this Restricted ADS Letter Agreement
and the transactions contemplated by this Restricted ADS Letter Agreement do not contravene or conflict with any Cayman Islands law of
general application.
3. Limitations
on Issuance of Restricted ADSs. The Company hereby instructs the Depositary, and
the Depositary agrees, upon the terms and subject to the conditions set forth in this Amended and Restated Restricted ADS Letter Agreement,
to issue and deliver Designated Restricted ADSs only (x) in the case of initial issuance upon receipt of (i) a duly
completed and signed Consent and Delivery Instruction from the Company or the Restricted Holder, as applicable, (ii) confirmation
from the Custodian of the receipt of the due deposit of the Designated Shares by the Company, or by, for, or on behalf of a Restricted
Holder, (iii) a “no registration” opinion of U.S. counsel to the Company or the Restricted Holder subject to customary
assumptions and qualifications, such opinion to be in form and substance reasonably satisfactory to the Depositary, and (iv) payment
of the applicable fees, taxes and expenses otherwise payable under the terms of the Deposit Agreement upon the deposit of Shares and
the issuance of ADSs, and (y) in the event of any corporate action of the Company which results in the issuance of Restricted ADSs
to the holder(s) of the Designated Restricted ADSs.
The Depositary shall (unless
otherwise agreed by the Company and the Depositary in writing) cause the Designated Restricted ADSs issued upon the deposit of Designated
Shares to be separately identified on the books of the Depositary under CUSIP No.:
90138A 99 6 (which may also be used by the Depositary
to identify other Restricted ADSs to be issued under the terms of the Deposit Agreement pursuant to other Restricted ADS letter agreements
between the Company and the Depositary) and the Designated Shares to be held, to the extent practicable, separate and distinct by the
Custodian from the other Deposited Securities held by the Custodian in respect of the ADSs issued under the Deposit Agreement that are
not Restricted ADSs.
The Depositary is hereby authorized
and directed notwithstanding the terms of Section 2.14 of the Deposit Agreement to issue the Designated Restricted ADSs as Uncertificated
Restricted ADSs registered in the books of the Depositary in the name of the Restricted Holders or their designees for the benefit of
the Restricted Holders subject to the restrictions specified in Section 4 below.
4. Stop
Transfer Notation and Legend. The books of the Depositary shall
identify the Designated Restricted ADSs as “restricted”
and shall contain a “stop transfer” notation to that effect. The Account Statements to be sent by the Depositary to the Restricted
Holders upon the issuance of Designated Restricted ADSs shall contain a legend substantially to the form of the following legend or certain
other legend specified in any applicable supplemental agreement between the Company and the Depositary:
THE RESTRICTED AMERICAN
DEPOSITARY SHARES ("RESTRICTED ADSs") CREDITED TO YOUR ACCOUNT AND THE UNDERLYING RESTRICTED SHARES ("RESTRICTED
SHARES") OF THE COMPANY ARE SUBJECT TO THE TERMS OF A RESTRICTED ADS LETTER AGREEMENT (THE "RESTRICTED ADS LETTER AGREEMENT")
AND THE DEPOSIT AGREEMENT, DATED AS OF APRIL 20, 2011, AS AMENDED AND SUPPLEMENTED (AS SO AMENDED AND SUPPLEMENTED, THE "DEPOSIT
AGREEMENT"). ALL TERMS USED BUT NOT OTHERWISE DEFINED HEREIN SHALL, UNLESS OTHERWISE SPECIFICALLY DESIGNATED HEREIN, HAVE THE
MEANING GIVEN TO SUCH TERMS IN THE RESTRICTED ADS LETTER AGREEMENT, OR IF NOT DEFINED THEREIN, IN THE DEPOSIT AGREEMENT.
HOLDERS AND BENEFICIAL
OWNERS OF THE RESTRICTED ADSs BY ACCEPTING AND HOLDING THE RESTRICTED ADSs, AND ANY INTEREST THEREIN, SHALL BE BOUND BY THE TERMS OF THE
DEPOSIT AGREEMENT AND THE RESTRICTED ADS LETTER AGREEMENT. AT THE TIME OF ISSUANCE OF THE RESTRICTED ADSs, THE SHARES REPRESENTED THEREBY
HAD NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND SUCH SHARES AND
ADSs HAD NOT BEEN REGISTERED OR QUALIFIED UNDER ANY APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, OR (B) IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES
ACT AND, IN EACH CASE OF (A) OR (B) ABOVE, IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE
UNITED STATES.
PRIOR TO THE SALE
OF THE RESTRICTED ADSs AND ISSUANCE OF FREELY TRANSFERABLE ADSs IN RESPECT THEREOF, A HOLDER OF RESTRICTED ADSs WILL BE REQUIRED TO PROVIDE
TO THE DEPOSITARY AND TO THE COMPANY A RESALE CERTIFICATION AND ISSUANCE INSTRUCTION IN THE FORM ATTACHED TO THE RESTRICTED ADS LETTER
AGREEMENT. PRIOR TO THE WITHDRAWAL OF THE RESTRICTED SHARES, A HOLDER OF RESTRICTED ADSs WILL BE REQUIRED TO PROVIDE TO THE DEPOSITARY
AND TO THE COMPANY A WITHDRAWAL CERTIFICATION IN THE FORM ATTACHED TO THE RESTRICTED ADS LETTER AGREEMENT. THE TRANSFER AND OTHER
RESTRICTIONS SET FORTH HEREIN AND IN THE RESTRICTED ADS LETTER AGREEMENT SHALL REMAIN APPLICABLE WITH RESPECT TO THE RESTRICTED ADSs AND
THE RESTRICTED SHARES UNTIL SUCH TIME AS THE PROCEDURES SET FORTH IN THE RESTRICTED ADS LETTER AGREEMENT FOR REMOVAL OF RESTRICTIONS ARE
SATISFIED. NEITHER THE COMPANY NOR THE DEPOSITARY MAKES ANY REPRESENTATION AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT FOR RESALE OF THE RESTRICTED SHARES OR THE RESTRICTED ADSs. A COPY OF THE DEPOSIT AGREEMENT AND OF THE RESTRICTED
ADS LETTER AGREEMENT MAY BE OBTAINED FROM THE DEPOSITARY OR THE COMPANY UPON REQUEST.
5. Limitations
on Transfer of Designated Restricted ADSs. The Designated Restricted ADSs shall be
transferable only by the Restricted Holder thereof upon delivery to the Depositary of (i) all applicable documentation otherwise
contemplated by the Deposit Agreement, and, (ii) a Transfer Certification from the transferring Restricted Holder substantially
in the form attached hereto as Exhibit B and (iii) such other documents as may reasonably be requested by the Depositary
under the terms hereof (including, without limitation, opinions of U.S. counsel as to compliance with the terms of the legend set forth
above in Section 4).
6. Limitations
On Cancellation of Designated Restricted ADSs. The Company instructs the Depositary,
and the Depositary agrees, not to release any Designated Shares or cancel any Designated Restricted ADSs for the purpose of withdrawing
the underlying Designated Shares unless (x) the conditions applicable to the withdrawal of Shares from the depositary receipts
facility created pursuant to the terms of the Deposit Agreement have been satisfied (except for any conditions relating to the Shares
not being Restricted Securities), including, without limitation, payment to the Depositary of the applicable fees, taxes and expenses
otherwise payable under the terms of the Deposit Agreement in connection with the cancellation of ADSs and withdrawal of Deposited Securities,
and (y) the Depositary shall have received from the person requesting the withdrawal of the Designated Shares a duly completed
and signed Withdrawal Certification substantially in the form attached hereto as Exhibit C (such certification, a “Withdrawal
Certification”).
7. Fungibility.
Except as contemplated herein and except as required by applicable law, the Designated Restricted ADSs shall, to the maximum extent
permitted by law and to the maximum extent practicable, be treated as ADSs issued and outstanding under the terms of the Deposit Agreement
that are not Restricted ADSs. Nothing contained herein shall obligate the Depositary to treat Holders of Designated Restricted ADSs on
terms more favorable than those accorded to Holders of ADSs under the Deposit Agreement.
8. Limitations
On Exchange of Designated Restricted ADSs for Freely Transferrable ADSs. The
Company instructs the Depositary, and the Depositary agrees, to cancel the Designated Restricted ADSs and to issue and deliver
freely transferable ADSs in respect thereof upon receipt of (i) a duly completed and signed Resale Certification and
Instruction Letter, substantially in the form attached hereto as Exhibit D (the “Resale Certification and
Instruction Letter”), (ii) an opinion of U.S. securities counsel contemplated in the Resale Certification and
Instruction Letter, (iii) payment of applicable fees, taxes and expenses otherwise payable under the Deposit Agreement, and
(iv) any other documents as may reasonably be requested by the Depositary under the terms of the Deposit Agreement and this
Amended and Restated Restricted ADS Letter Agreement.
9. Removal
of Restrictions. Subject to the terms of any applicable supplemental agreement
between the Company and the Depositary, the Depositary shall remove all stop transfer notations from its records in respect of
specified Designated Restricted ADSs and shall treat such Designated Restricted ADSs on the same terms as the ADSs outstanding under
the terms of the Deposit Agreement that are not Restricted ADSs upon receipt of (x) written instructions from the Company to so
remove all stop transfer notations from its records in respect of specified Designated Restricted ADSs and to treat such Designated
Restricted ADSs on the same terms as the ADSs outstanding under the terms of the Deposit Agreement that are not Restricted ADSs, and
(y) an opinion of U.S. counsel to the Company to the effect that the specified Designated Restricted ADSs and the underlying
Designated Shares are eligible for resale under Rule 144 under the Securities Act or otherwise by persons who are not and have
not been affiliates (as defined in Rule 144) of the Company for the three months preceding the date thereof, in either case
without limitations imposed by the Securities Act, such opinion to be in form and substance reasonably satisfactory to the
Depositary or evidence reasonably satisfactory to the Depositary that the transfer of certain designated Restricted ADSs is covered
by an effective Registration Statement under the Securities Act. Upon receipt (i) of such instructions, (ii) and payment
of applicable fees, taxes and expenses under the Deposit Agreement, and (iii) such opinion of counsel, or evidence reasonably
satisfactory to the Depositary that the transfer of certain Designated Restricted ADSs is covered by an effective Registration
Statement under the Securities Act, the Depositary shall take all actions necessary to remove any distinctions previously
existing between the applicable Designated Restricted ADSs and the ADSs that are not Restricted ADSs, including, without limitation,
by (a) removing the stop transfer notations on its records in respect of the applicable ADSs previously identified as
Designated Restricted ADSs, and (b) making the formerly Designated Restricted ADSs eligible for inclusion in the applicable
book-entry settlement system.
10. Representations
and Warranties. The Company hereby represents and warrants as of the date hereof
and as of the date of each subsequent deposit of Designated Shares under this Amended and Restated Restricted ADS Letter Agreement that
(a) the Designated Shares being deposited or to be deposited by the Company, or by, for, or on behalf of, the Restricted Holders
for the purpose of the issuance of Designated Restricted ADSs are or will be validly issued, fully paid and non-assessable, and free
of any preemptive rights of the holders of outstanding Shares, (b) the deposit from time to time of Designated Shares by the Company,
or by, for, or on behalf of, Restricted Holders and the issuance and delivery of Designated Restricted ADSs, in each case upon the terms
contemplated herein, will not, as of the time of such deposit and issuance, require registration under the Securities Act, (c) all
approvals required by Cayman Islands law to permit the deposit of Designated Shares under the Deposit Agreement and this Amended and
Restated Restricted ADS Letter Agreement have been, or will be, obtained prior to the deposit of Designated Shares, (d) the Designated
Shares are of the same class as, and rank pari passu with, the other Shares on deposit under the Deposit Agreement, and (e) to
the Company’s knowledge, none of the terms of this Amended and Restated Restricted ADS Letter Agreement and none of the transactions
contemplated in this Amended and Restated Restricted ADS Letter Agreement violate any court judgment or order issued against the Company
or any material contract to which it is a party. Such representations and warranties shall survive each deposit of Designated Shares
and each issuance of Designated Restricted ADSs hereunder.
11. Indemnity.
Each of the Company and the Depositary acknowledges and agrees that the indemnification provisions of Section 5.8 of the Deposit
Agreement shall apply to the acceptance of Designated Shares for deposit, the issuance of Designated Restricted ADSs, the transfer of
the Designated Restricted ADSs, the addition/removal of the transfer and other restrictions set forth herein with respect to ADSs/Restricted
ADSs, and the withdrawal of Designated Shares, in each case upon the terms set forth herein, as well as to any other acts performed or
omitted by the Depositary as contemplated by this Amended and Restated Restricted ADS Letter Agreement.
12. Governing
Law and Jurisdiction. This Amended and Restated Restricted ADS Letter Agreement shall
be interpreted in accordance with, and all the rights and obligations hereunder shall be governed by, the laws of the State of New York
as applicable to contracts to be wholly performed within the State of New York.
Each of the Company and
the Depositary acknowledges and agrees that the federal or state courts in the City of New York shall have jurisdiction to hear and
determine any suit, action or proceeding and to settle any dispute between them that may arise out of or in connection with this
Amended and Restated Restricted ADS Letter Agreement and, for such purposes, each irrevocably submits to the non-exclusive
jurisdiction of such courts. The Company hereby irrevocably designates, appoints and empowers Cogency Global Inc. (the “Agent”) now
located at 122 East 42nd Street, 18th Floor, New York, New York 10168, as its authorized agent to receive and accept for and on its
behalf, and on behalf of its properties, assets and revenues, service by mail of any and all legal process, summons, notices and
documents that may be served in any suit, action or proceeding brought against the Company in any federal or state court as
described in the preceding sentence or as otherwise contemplated herein. If for any reason the Agent shall cease to be available to
act as such, the Company agrees to designate a new agent on the terms and for the purposes set forth herein reasonably satisfactory
to the Depositary. The Company further hereby irrevocably consents and agrees to the service of any and all legal process, summons,
notices and documents in any suit, action or proceeding against the Company, by service by mail of a copy thereof upon the Agent
(whether or not the appointment of such Agent shall for any reason prove to be ineffective or such Agent shall fail to accept or
acknowledge such service), with a copy mailed to the Company by registered or certified air mail, postage prepaid, to its address
provided in Section 7.5 of the Deposit Agreement. The Company agrees that the failure of the Agent to give any notice of
such service to it shall not impair or affect in any way the validity of such service or any judgment rendered in any action or
proceeding based thereon. The Company irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection
that it may now or hereafter have to the laying of venue of any actions, suits or proceedings brought in any court as provided in
this Amended and Restated Restricted ADS Letter Agreement, and hereby further irrevocably and unconditionally waives and agrees not
to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an
inconvenient forum.
This Amended and Restated Restricted
ADS Letter Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of such counterparts
shall constitute the same agreement.
[Remainder of page intentionally left blank.
Signature page to follow.]
The
Company and the Depositary have caused this Amended and Restated Restricted ADS Letter Agreement to be executed and delivered on their
behalf by their respective officers thereunto duly authorized as of the date set forth above.
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21Vianet Group, Inc. |
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By: |
![](https://www.sec.gov/Archives/edgar/data/1541680/000110465924078193/tm2418852d1_ex99-32img001.jpg) |
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Name: |
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Title: |
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CITIBANK, N.A. |
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as Depositary |
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By: |
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Name: |
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Title: |
EXHIBITS
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A-1 Consent and Delivery Instruction
— Company |
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A-2 Consent and Delivery Instruction — Restricted
Holder |
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B Transfer Certification |
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C Withdrawal Certification |
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D Resale Certification and Instruction Letter |
[Signature Page to Amended and Restated
Restricted ADS Letter Agreement]
The Company and the Depositary have caused this Amended
and Restated Restricted ADS Letter Agreement to be executed and delivered on their behalf by their respective officers thereunto duly
authorized as of the date set forth above.
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21Vianet Group, Inc. |
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By: |
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Name: |
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Title: |
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CITIBANK, N.A. |
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as Depositary |
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By: |
/s/
Keith Galfo |
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Name:Keith Galfo |
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Title: Vice President |
EXHIBITS
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A-1 Consent and Delivery Instruction
— Company |
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A-2 Consent and Delivery Instruction — Restricted
Holder |
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B Transfer Certification |
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C Withdrawal Certification |
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D Resale Certification and Instruction Letter |
EXHIBIT A-1
to
Amended and Restated Restricted ADS Letter
Agreement, dated as of January 26, 2021
(the “Amended and Restated Restricted ADS Letter Agreement”), by and between
21Vianet Group, Inc.
and
Citibank, N.A.
CONSENT AND DELIVERY INSTRUCTION - COMPANY
[·][·], 20[·]
Citibank, N.A. - ADR Department
388 Greenwich Street
New York, New York 10013
Attn: Account Management
2l Vianet Group. Inc. (CUSIP #) *
Dear Sirs:
Reference is hereby made to (i) the Deposit
Agreement, dated as of April 20, 2011, as amended and supplemented from time to time (the “Deposit Agreement”),
by and among 21Vianet Group, Inc. (the “Company”), Citibank, N.A., as Depositary (the “Depositary”),
and all Holders and Beneficial Owners of American Depositary Shares (the “ADSs”) issued thereunder, and (ii) the
Amended and Restated Restricted ADS Letter Agreement, dated as of January 26, 2021 (the “Amended and Restated Restricted
ADS Letter Agreement”), by and between the Company and the Depositary. Capitalized terms used but not defined herein shall have
the meanings given to them in the Deposit Agreement, or, in the event so noted herein, in the Amended and Restated Restricted ADS Letter
Agreement.
The Company hereby deposits the Designated Shares
specified in Schedule I hereto on behalf of the specified beneficial owners thereof and hereby consents to the issuance by the
Depositary of the corresponding Designated Restricted ADSs (as defined in the Amended and Restated Restricted ADS Letter Agreement).
* Please insert applicable CUSIP # prior to completion and delivery.
General RADSs – CUSIP # 90138A 99 6 / Convertible Bond RADSs – CUSIP # 90138A 88 9.
The Company hereby represents and warrants to the Depositary that
(a) the Designated Shares (as defined in the Amended and Restated Restricted ADS Letter Agreement) being deposited for the
purpose of the issuance of Designated Restricted ADSs are validly issued, fully paid and non-assessable, and free of any preemptive
rights of the holders of outstanding Shares, (b) the deposit of the specified Designated Shares and the issuance and delivery
of Designated Restricted ADSs in respect thereof, in each case upon the terms contemplated in the Amended and Restated Restricted
ADS Letter Agreement, will not, as of the time of such deposit and issuance, require registration under the Securities Act,
(c) all approvals required by Cayman Islands law to permit the deposit of the specified Designated Shares under the Deposit
Agreement and the Amended and Restated Restricted ADS Letter Agreement have been obtained prior to the deposit of the specified
Designated Shares, (d) the Designated Shares are of the same class as, and rank pari passu with, the other Shares on
deposit under the Deposit Agreement, and (e) the specified beneficial owners of the Designated Shares specified on Schedule I
hereto will be the Beneficial Owners of the corresponding Designated Restricted ADSs immediately following the deposit of the
Designated Shares.
The Company confirms that payment of the applicable
fees, taxes and expenses payable under the terms of the Deposit Agreement and the Amended and Restated Restricted ADS Letter Agreement
upon the deposit of Shares and issuance of ADSs is being made to the Depositary concurrently herewith.
The Company has caused this Consent and Delivery
Instruction to be executed and delivered on its behalf by their respective officers thereunto duly authorized as of the date set forth
above.
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21Vianet Group, Inc. |
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By: |
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Name: |
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Title: |
Schedule I
Designated Shares |
Designated Restricted ADSs |
Name and Address of
Beneficial Owner of
Designated Restricted ADSs |
Shares |
ADSs |
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EXHIBIT A-2
to
Amended and Restated Restricted ADS Letter
Agreement, dated as of January 26, 2021
(the “Restricted ADS Letter Agreement”),
by and between
21Vianet Group, Inc.
and
Citibank, N.A.
CONSENT AND DELIVERY INSTRUCTION – RESTRICTED
HOLDER
[·][·], 20[·]
Citibank, N.A. - ADR Department
388 Greenwich Street
New York, New York 10013
Attn: Account Management
2l Vianet Group. Inc. (CUSIP #)*
Dear Sirs:
Reference is hereby made to (i) the Deposit
Agreement, dated as of April 20, 2011, as amended and supplemented from time to time (the “Deposit Agreement”),
by and among 21Vianet Group, Inc. (the “Company”), Citibank, N.A., as Depositary (the “Depositary”),
and all Holders and Beneficial Owners of American Depositary Shares (the “ADSs”) issued thereunder, and (ii) the
Amended and Restated Restricted ADS Letter Agreement, dated as of January 26, 2021 (the “Amended and Restated Restricted
ADS Letter Agreement”), by and between the Company and the Depositary. Capitalized terms used but not defined herein shall have
the meanings given to them in the Deposit Agreement, or, in the event so noted herein, in the Amended and Restated Restricted ADS Letter
Agreement.
The undersigned holder of Restricted Shares (as defined
in the Amended and Restated Restricted ADS Letter Agreement) (the “Restricted Holder”) hereby advises the Depositary
and the Company of its intent to deposit, or to cause to be deposited on its behalf, the Designated Shares specified in Schedule I
hereto and the Company hereby consents to the issuance by the Depositary of the corresponding Designated Restricted ADSs (as defined in
the Amended and Restated Restricted ADS Letter Agreement).
* Please insert applicable CUSIP # prior to completion and delivery.
General RADSs – CUSIP # 90138A 99 6 / Convertible Bond RADSs – CUSIP # 90138A 88 9.
Each of the Restricted Holder and the Company hereby represents
and warrants to the Depositary that (a) the Designated Shares (as defined in the Amended and Restated Restricted ADS Letter
Agreement) being deposited for the purpose of the issuance of Designated Restricted ADSs are validly issued, fully paid and
non-assessable, and free of any preemptive rights of the holders of outstanding Shares, (b) the deposit of the specified
Designated Shares and the issuance and delivery of Designated Restricted ADSs in respect thereof, in each case upon the terms
contemplated in the Amended and Restated Restricted ADS Letter Agreement, will not, as of the time of such deposit and issuance,
require registration under the Securities Act, (c) all approvals required by Cayman Islands law to permit the deposit of the
specified Designated Shares under the Deposit Agreement and the Amended and Restated Restricted ADS Letter Agreement have been
obtained prior to the deposit of the specified Designated Shares, (d) the Designated Shares are of the same class as, and rank pari
passu with, the other Shares on deposit under the Deposit Agreement, and (e) the specified Restricted Holder of the
Designated Shares specified on Schedule I hereto will be the Beneficial Owner of the corresponding Designated Restricted ADSs
immediately following the deposit of the Designated Shares.
Each of the Restricted Holder and the Company confirms
that payment of the applicable fees, taxes and expenses payable under the terms of the Deposit Agreement and the Amended and Restated
Restricted ADS Letter Agreement upon the deposit of Shares and issuance of ADSs is being made to the Depositary concurrently herewith.
Each of the Restricted Holder and the Company has
caused this Consent and Delivery Instruction to be executed and delivered on its behalf by their respective officers thereunto duly authorized
as of the date set forth above.
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[RESTRICTED HOLDER] |
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By: |
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Name: |
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Title: |
Consented to:
21Vianet Group, Inc. |
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By: |
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Name: |
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Title: |
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Schedule I
Designated Shares |
Designated Restricted ADSs |
Name and Address of
Beneficial Owner of
Designated Restricted ADSs |
Shares |
ADSs |
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EXHIBIT B
to
Amended and Restated Restricted ADS Letter
Agreement, dated as of January 26, 2021
(the “Amended and Restated Restricted ADS Letter Agreement”), by and between
21Vianet Group, Inc.
and
Citibank, N.A.
TRANSFER CERTIFICATION
[·][·], 20[·]
Citibank, N.A. - ADR Department
388 Greenwich Street
New York, New York 10013
Attn: Account Management
21Vianet Group, Inc. (CUSIP #)*
Dear Sirs:
Reference is hereby made to (i) the Deposit
Agreement, dated as of April 20, 2011, as amended and supplemented from time to time (the “Deposit Agreement”),
by and among 21Vianet Group, Inc., (the “Company”), Citibank, N.A., as Depositary (the “Depositary”),
and all Holders and Beneficial Owners of American Depositary Shares (the “ADSs”) issued thereunder, and (ii) the
Amended and Restated Restricted ADS Letter Agreement, dated as of January 26, 2021 (the “Amended and Restated Restricted
ADS Letter Agreement”), by and between the Company and the Depositary. Capitalized terms used but not defined herein shall have
the meanings given to them in the Deposit Agreement, or, in the event so noted herein, in the Amended and Restated Restricted ADS Letter
Agreement.
* Please insert applicable CUSIP # prior to completion and delivery.
General RADSs – CUSIP # 90138A 99 6 / Convertible Bond RADSs – CUSIP # 90138A 88 9.
In connection with the transfer of the Restricted
ADSs surrendered herewith (the “Surrendered Restricted ADSs”) to the person(s) specified in Schedule I
hereto, the undersigned Holder certifies that:
(CHECK ONE)
___ |
(a) |
The Surrendered Restricted ADSs are being transferred to a person who the undersigned Holder reasonably believes is a “Qualified
Institutional Buyer” (within the meaning of Rule 144A under the Securities Act) for the account of a Qualified Institutional
Buyer in a transaction meeting the requirements of Rule 144A under the Securities Act and the transferee is acquiring the Surrendered
Restricted ADSs for investment purposes only without a view to distribution. |
O R
___ |
(b) |
The Surrendered Restricted ADSs are being transferred to a person other than a U.S. Person (as defined in Regulation S under the Securities
Act) in an offshore transaction meeting the requirements of Regulation S under the Securities Act and the transferee is acquiring the
Surrendered Restricted ADSs for investment purposes without a view to distribution. |
If neither of the items above is checked, the Depositary
shall not be obligated to register the Surrendered Restricted ADSs in the name of any person other than the Holder thereof unless and
until the conditions to any such transfer or registration set forth in the Deposit Agreement and the Amended and Restated Restricted ADS
Letter Agreement shall have been satisfied (including, without limitation, the delivery of an opinion of U.S. securities counsel).
The transferor confirms that applicable taxes and
expenses payable in connection the transfer of ADSs under the terms of the Deposit Agreement and the Amended and Restated Restricted ADS
Letter Agreement is being made to the Depositary concurrently herewith.
The transferee has and, if acting on behalf of the
Beneficial Owner, such Beneficial Owner has agreed to take a Restricted ADSs identical to the Restricted ADSs surrendered for transfer
and subject to the same restrictions on transfer set forth in the Amended and Restated Restricted ADS Letter Agreement.
MEDALLION GUARANTEE
Medallion
Guarantee Stamp (Notary public seal is not acceptable)
Name of Firm Issuing Guarantee: |
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Authorized Signature of Officer: |
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Title of Officer Signing This Guarantee: |
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Area Code and Telephone Number: |
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The signature(s) above must be guaranteed
by an Eligible Guarantor Institution that is a member in good standing of a recognized Medallion Signature Guarantee Program approved
by The Securities Transfer Association, Inc.
The signature(s) must be stamped with a Medallion Signature Guarantee
by a qualified financial institution, such as a commercial bank, savings bank, savings and loan institutions, U.S. stock broker and security
dealer, or credit union, that is participating in an approved Medallion Signature Guarantee Program. A NOTARY PUBLIC SEAL IS NOT ACCEPTABLE.
Schedule I
The Restricted ADSs are hereby surrendered for transfer by the following
person(s):
Name of Owner: |
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Social Security Number or Taxpayer Identification
Number of Owner: |
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Account Number of Owner: |
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Street Address: |
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City, State, and Country: |
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Date: |
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The Restricted ADSs are to be issued in the name of, and delivered
to, the following person(s) in the form of Uncertificated ADSs:
Name of Transferee: |
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Street Address: |
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City, State, and Country: |
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Nationality: |
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Social Security or Tax Identification Number: |
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EXHIBIT C
to
Amended and Restated Restricted ADS Letter
Agreement, dated as of January 26, 2021
(the “Amended and Restated Restricted ADS Letter Agreement”), by and between
21Vianet Group, Inc.
and
Citibank, N.A.
WITHDRAWAL CERTIFICATION
[·][·], 20[·]
Citibank, N.A. - ADR Department
388 Greenwich Street
New York, New York 10013
Attn: Account Management
21Vianet Group, Inc. (Cusip #) *
Dear Sirs:
Reference is hereby made to (i) the Deposit
Agreement, dated as of April 20, 2011, as amended and supplemented from time to time (the “Deposit Agreement”),
by and among 21Vianet Group, Inc. (the “Company”), Citibank, N.A., as Depositary (the “Depositary”),
and all Holders and Beneficial Owners of American Depositary Shares (the “ADSs”) issued thereunder, and (ii) the
Amended and Restated Restricted ADS Letter Agreement, dated as of January 26, 2021 (the “Amended and Restated Restricted
ADS Letter Agreement”), by and between the Company and the Depositary. Capitalized terms used but not defined herein shall have
the meanings given to them in the Deposit Agreement, or, in the event so noted herein, in the Amended and Restated Restricted ADS Letter
Agreement.
1. This
Withdrawal Certification is being furnished in connection with the withdrawal of Restricted Shares upon surrender of Restricted ADSs to
the Depositary.
2. We
acknowledge, or, if we are acting for the account of another person, such person has confirmed to us that it acknowledges, that the Restricted
ADSs and the Restricted Shares represented thereby have not been registered under the Securities Act.
* Please insert applicable CUSIP # prior to completion and delivery.
General RADSs – CUSIP # 90138A 99 6 / Convertible Bond RADSs – CUSIP # 90138A 88 9.
3. We
certify that either (check one):
(a) we
have sold or otherwise transferred, or agreed to sell or otherwise transfer and at or prior to the time of withdrawal will have sold or
otherwise transferred, the Restricted ADSs or the Restricted Shares represented thereby to persons other than US Persons (as defined in
Regulation S under the Securities Act) in an offshore transaction (as defined in Regulation S under the Securities Act) in accordance
with Rule 904 of Regulation S under the Securities Act [, provided that in connection with such transfer, we have
delivered or will deliver an opinion of U.S. counsel reasonably satisfactory to the Depositary and the Company to the effect that the
transfer is exempt from the registration requirements of the Securities Act], or
(b) we
have sold or otherwise transferred, or agreed to sell or otherwise transfer and at or prior to the time of withdrawal will have sold or
otherwise transferred, the Restricted ADSs or the Restricted Shares represented thereby in a transaction exempt from registration pursuant
to Rule 144 under the Securities Act[, provided that in connection with such transfer, we have delivered or will deliver
an opinion of U.S. counsel reasonably satisfactory to the Depositary and the Company to the effect that the transfer is exempt from the
registration requirements of the Securities Act], or
(c) we
will be the beneficial owner of the Restricted Shares upon withdrawal, and, accordingly, we agree that (x) we will not offer, sell,
pledge or otherwise transfer the Restricted Shares except (A) in a transaction exempt from registration pursuant to Rule 144
under the Securities Act, if available, (B) in an offshore transaction (as defined in Regulation S under the Securities Act) to persons
other than U.S. Persons (as defined in Regulation S under the Securities Act) in accordance with Rule 904 of Regulation S under the
Securities Act, (C) pursuant to any other available exemption from the registration requirements of the Securities Act, or (D) pursuant
to an effective registration statement under the Securities Act, in each case in accordance with any applicable securities laws of the
states of the United States, and (y) we will not deposit or cause to be deposited such Restricted Shares into any depositary receipt
facility established or maintained by a depositary bank (including any such facility maintained by the Depositary), so long as such Restricted
Shares are “Restricted Securities” (within the meaning of given to such term in the Deposit Agreement).
The undersigned hereby instructs the Depositary to cancel the Restricted
ADSs specified below, to deliver the Shares represented thereby as specified below and, if applicable, to issue to the undersigned a statement
identifying the number of Restricted ADSs held by the undersigned and not cancelled pursuant to these instructions. The undersigned appoints
the Depositary and any of its authorized representatives as its attorney to take the actions contemplated above on behalf of the undersigned. The undersigned confirms that applicable fees, taxes
and expenses payable under the terms of the Deposit Agreement and the Amended and Restated Restricted ADS Letter Agreement in connection
the cancellation of Restricted ADSs and the withdrawal of the corresponding Restricted Shares is being made to the Depositary concurrently
herewith.
Name of Owner: |
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Social Security Number or Taxpayer Identification Number of Owner: |
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Account Number of Owner: |
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Number of Restricted ADSs to be cancelled: |
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Delivery Information for |
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delivery of Shares Represented |
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by Restricted ADSs to be |
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cancelled: |
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Date: |
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Signature of Owner: |
(Identify Title if Acting in Representative Capacity) |
MEDALLION GUARANTEE
Medallion
Guarantee Stamp (Notary public seal is not acceptable)
Name of Firm Issuing Guarantee:
Authorized Signature of Officer:
Title of Officer Signing This Guarantee:
Address:
Area Code and Telephone Number:
Dated:
The signature(s) above must be guaranteed
by an Eligible Guarantor Institution that is a member in good standing of a recognized Medallion Signature Guarantee Program approved
by The Securities Transfer Association, Inc.
The signature(s) must be stamped with a Medallion Signature Guarantee
by a qualified financial institution, such as a commercial bank, savings bank, savings and loan institutions, U.S. stock broker and security
dealer, or credit union, that is participating in an approved Medallion Signature Guarantee Program. A NOTARY PUBLIC SEAL IS NOT ACCEPTABLE.
EXHIBIT D
to
Amended and Restated Restricted ADS Letter
Agreement, dated as of January 26, 2021
(the “Amended and Restated Restricted ADS Letter Agreement”), by and between
21Vianet Group, Inc.
and
Citibank, N.A.
RESALE CERTIFICATION AND INSTRUCTION LETTER
[·][·], 20[·]
Citibank, N.A. - ADR Department
388 Greenwich Street
New York, New York 10013
Attn: Account Management
21Vianet
Group, Inc. (CUSIP # )*
Dear Sirs:
Reference is hereby made to (i) the Deposit
Agreement, dated as of April 20, 2011, as amended and supplemented from time to time (the “Deposit Agreement”),
by and among 21Vianet Group, Inc., a company organized under the laws of the Cayman Islands (the “Company”), Citibank,
N.A., as Depositary (the “Depositary”), and all Holders and Beneficial Owners of American Depositary Shares (the “ADSs”)
issued thereunder, and (ii) the Amended and Restated Restricted ADS Letter Agreement, dated as of January 26, 2021 (the “Amended
and Restated Restricted ADS Letter Agreement”), by and between the Company and the Depositary. Capitalized terms used but not
defined herein shall have the meanings given to them in the Deposit Agreement, or, in the event so noted herein, in the Amended and Restated
Restricted ADS Letter Agreement.
This Resale Certification and Instruction Letter
is being provided in connection with our request to the Depositary to transfer the Restricted ADSs specified below (registered in the
name of the undersigned or the undersigned's designee in the form of freely transferable ADSs in connection with our sale or transfer
of such ADSs in a transaction exempt from registration under the Securities Act or covered by a Registration
Statement (the “Sale”).
* Please insert applicable CUSIP # prior to completion and delivery.
General RADSs – CUSIP # 90138A 99 6 / Convertible Bond RADSs – CUSIP # 90138A 88 9.
The undersigned certifies that (please check appropriate box
below):
*
❑ Sale Pursuant to Resale Registration Statement: (x) the Sale pursuant to which its Restricted
ADSs are being sold is covered by a registration statement under the Securities Act that has been declared effective by the Commission
and is currently in effect, (y) the ADSs to be delivered upon such sale are not “Restricted Securities” (within the meaning
of Rule 144(a)(3) under the Securities Act), and (z) the undersigned has satisfied all applicable prospectus delivery requirements
under the Securities Act;
OR
**
❑ Sale Exempt from Registration (Post Six Months Sales only): (x) the Restricted ADSs to be transferred
and the Restricted Shares represented thereby are not held by an Affiliate of the Company or a person who has been an Affiliate of the
Company during the preceding three months, (y) at least six months has elapsed since the Restricted Shares represented
by such Restricted ADSs were acquired from the Company or an Affiliate of the Company, and (z) the Company is, and has been for a
period of at least 90 days immediately prior to the sale has been, subject to the reporting requirements of Sections 13 or 15(d) of
the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and has filed all required reports under Sections
13 and 15(d) of the Exchange Act (as applicable) during the 12 months preceding the sale (other than Form 6-K reports);
OR
**
❑ Sale Exempt from Registration (Post One Year Sales only): (x) the Restricted ADSs to be transferred
and the Restricted Shares represented thereby are not held by an Affiliate of the Company or a person who has been an Affiliate of the
Company during the preceding three months, and (y) at least one year has elapsed since the Restricted Shares represented
by such Restricted ADSs were acquired from the Company or an Affiliate of the Company;
OR
** ❑ Sale
Exempt from Registration (Sales other than Post Six Months Sales or Post One Year Sales): the Restricted ADSs to be
transferred and the Restricted Shares represented thereby are being sold in a transaction exempt from registration under the
Securities
*
The Company may have delivered the requisite opinion of counsel to cover this transaction to the Depositary.
**
The delivery of the requisite opinion of counsel to cover this transaction is the sole responsibility of the selling Restricted
ADS holder.
Act and the ADSs to be delivered upon transfer are not “Restricted
Securities” (within the meaning of Rule 144(a)(3) under the Securities Act);
OR
** ¨
Transfers Exempt from Registration (other than sales above): the Restricted ADSs to be transferred and the Restricted Shares
represented thereby are being transferred in a transaction exempt from registration under the Securities Act and the ADSs to be delivered
upon transfer are not “Restricted Securities” (within the meaning of Rule 144(a)(3) under the Securities Act);
The undersigned hereby requests that the Depositary:
| (i) | debit from the undersigned's account specified below, for the issuance of unrestricted ADSs, the following number of Restricted ADSs: |
| | |
| | |
|
| Restricted ADSs (CUSIP No.:_____________)*, and |
| (ii) | following the debit of the Restricted ADSs as contemplated in (i) above, issue and deliver “free” the following number
of ADSs: |
| | |
| | |
|
| | (CUSIP No.:90138A 103) |
|
to the person(s) identified below:
1. If
ADSs are to be issued and delivered by means of book-entry transfer to the DTC account of the undersigned:
Name of DTC Participant acting for
undersigned:
DTC Participant Account No.:
Account No. for undersigned at
DTC Participant (f/b/o information):
* Please insert applicable CUSIP # prior to completion and delivery.
General RADSs – CUSIP # 90138A 99 6 / Convertible Bond RADSs – CUSIP # 90138A 88 9.
Onward Delivery Instructions of
undersigned:
Contact person at DTC Participant:
Daytime telephone number of
contact person at DTC Participant:
2. If
ADSs are to be issued delivered in the form of Uncertificated ADSs or in the form of an ADR:
Name of Purchaser/Transferee: |
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Street Address: |
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City, State, and Country: |
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Nationality: |
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Social Security or Tax Identification Number: |
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The undersigned hereby instructs the Depositary to
cancel the Restricted ADSs to be transferred in the form of freely transferable ADSs and, if applicable, to issue to the undersigned a
statement identifying the number of Restricted ADSs held by the undersigned so transferred. The undersigned irrevocably appoints the Depositary
and any of its authorized representatives as its attorney to take the actions contemplated above on behalf of the undersigned. The undersigned
confirms that applicable fees, taxes and expenses payable under the terms of the Deposit Agreement and the Amended and Restated Restricted
ADS Letter Agreement in connection the cancellation of Restricted ADSs and the issuance of ADSs is being made to the Depositary concurrently
herewith.
Name of Owner: |
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Social Security Number or Taxpayer Identification
Number of Owner: |
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Account Number of Owner: |
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Date: |
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Signature of Owner: |
(Identify Title if Acting in Representative Capacity) |
MEDALLION GUARANTEE
Medallion
Guarantee Stamp (Notary public seal is not acceptable)
Name of Firm Issuing Guarantee: |
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Authorized Signature of Officer: |
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Title of Officer Signing This Guarantee: |
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Area Code and Telephone Number: |
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The signature(s) above must be guaranteed
by an Eligible Guarantor Institution that is a member in good standing of a recognized Medallion Signature Guarantee Program approved
by The Securities Transfer Association, Inc.
The signature(s) must be stamped with a Medallion Signature Guarantee
by a qualified financial institution, such as a commercial bank, savings bank, savings and loan institutions, U.S. stock broker and security
dealer, or credit union, that is participating in an approved Medallion Signature Guarantee Program. A NOTARY PUBLIC SEAL IS NOT ACCEPTABLE.
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