0001193125-13-282737.txt : 20130703 0001193125-13-282737.hdr.sgml : 20130703 20130703164452 ACCESSION NUMBER: 0001193125-13-282737 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20130703 DATE AS OF CHANGE: 20130703 GROUP MEMBERS: CPI BALLPARK INVESTMENTS LTD GROUP MEMBERS: NEWQUEST ASIA FUND I (G.P.) LTD. GROUP MEMBERS: NEWQUEST CAPITAL MANAGEMENT (CAYMAN) LTD SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: China Hydroelectric Corp CENTRAL INDEX KEY: 0001477156 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC SERVICES [4911] IRS NUMBER: 208979735 STATE OF INCORPORATION: E9 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-85243 FILM NUMBER: 13953573 BUSINESS ADDRESS: STREET 1: 420 LEXINGTON AVENUE STREET 2: SUITE 860 CITY: NEW YORK STATE: NY ZIP: 10170 BUSINESS PHONE: 646-467-9800 MAIL ADDRESS: STREET 1: 420 LEXINGTON AVENUE STREET 2: SUITE 860 CITY: NEW YORK STATE: NY ZIP: 10170 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: NewQuest Asia Fund I, L.P. CENTRAL INDEX KEY: 0001514180 IRS NUMBER: 000000000 STATE OF INCORPORATION: E9 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: WALKER HOUSE STREET 2: 87 MARY STREET, GEORGE TOWN CITY: GRAND CAYMAN STATE: E9 ZIP: KY1-9005 BUSINESS PHONE: (345)949-0100 MAIL ADDRESS: STREET 1: WALKER HOUSE STREET 2: 87 MARY STREET, GEORGE TOWN CITY: GRAND CAYMAN STATE: E9 ZIP: KY1-9005 SC 13D/A 1 d562713dsc13da.htm AMENDMENT NO. 1 TO SCHEDULE 13D AMENDMENT NO. 1 TO SCHEDULE 13D

 

 

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. 1)*

 

 

China Hydroelectric Corporation

(Name of Issuer)

Ordinary Shares, $0.001 par value per share**

American Depositary Shares

(Title of Class of Securities)

16949D101***

(CUSIP Number)

NewQuest Asia Fund I (G.P.) Ltd.

c/o Walkers Corporate Services Limited

Walker House

87 Mary Street, George Town

Grand Cayman, Cayman Islands KY1-9005

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

July 3, 2013

(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.  ¨

 

 

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.

 

 

 

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

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

 

** Not for trading, but in connection with the registration of American Depositary Shares, each representing three ordinary shares, $0.001 par value per share, of China Hydroelectric Corporation.
*** CUSIP number of the American Depositary Shares.

 

 

 


CUSIP No. 16949D101   Page 2 of 9 Pages

 

  1   

Names of reporting persons

 

NewQuest Capital Management (Cayman) Limited

  2  

Check the appropriate box if a member of a group

(a)  ¨        (b)  x

 

  3  

SEC use only

 

  4  

Source of funds

 

    AF

  5  

Check box if disclosure of legal proceedings is required pursuant to Item 2(d) or 2(e)    ¨

 

  6  

Citizenship or place of organization

 

    Cayman Islands

Number of

shares

beneficially

owned by

each

reporting

person

with

 

     7    

Sole voting power

 

    52,777,569

     8   

Shared voting power

 

    0

     9   

Sole dispositive power

 

    0

   10   

Shared dispositive power

 

    0

11  

Aggregate amount beneficially owned by each reporting person

 

    97,741,619(1)

12  

Check box if the aggregate amount in Row (11) excludes certain shares    ¨

 

13  

Percent of class represented by amount in Row (11)

 

    56.8%(1)(2)

14  

Type of reporting person

 

    CO

 

(1) Includes (A) 34,959,893 Ordinary Shares, or approximately 20.3% of the Ordinary Shares deemed outstanding, that may be deemed to be beneficially owned pursuant to the terms of an option agreement between CPI Ballpark Investments Ltd and Vicis Capital Master Fund, and (B) 10,004,157 Ordinary Shares, or approximately 5.8% of the Ordinary Shares deemed outstanding, that may be deemed to be beneficially owned pursuant to the terms of a warrant issued by China Hydroelectric Corporation. See Item 6 of this Amendment for a description of the option agreement and warrant.
(2) Based on amounts deemed to be outstanding as reported in Item 5 of this Amendment.


CUSIP No. 16949D101   Page 3 of 9 Pages

 

  1   

Names of reporting persons

 

NewQuest Asia Fund I (G.P.) Ltd.

  2  

Check the appropriate box if a member of a group

(a)  ¨        (b)  x

 

  3  

SEC use only

 

  4  

Source of funds

 

    AF

  5  

Check box if disclosure of legal proceedings is required pursuant to Item 2(d) or 2(e)    ¨

 

  6  

Citizenship or place of organization

 

    Cayman Islands

Number of

shares

beneficially

owned by

each

reporting

person

with

 

     7    

Sole voting power

 

    52,777,569

     8   

Shared voting power

 

    0

     9   

Sole dispositive power

 

    52,777,569

   10   

Shared dispositive power

 

    0

11  

Aggregate amount beneficially owned by each reporting person

 

    97,741,619(1)

12  

Check box if the aggregate amount in Row (11) excludes certain shares    ¨

 

13  

Percent of class represented by amount in Row (11)

 

    56.8%(1)(2)

14  

Type of reporting person

 

    CO

 

(1) Includes (A) 34,959,893 Ordinary Shares, or approximately 20.3% of the Ordinary Shares deemed outstanding, that may be deemed to be beneficially owned pursuant to the terms of an option agreement between CPI Ballpark Investments Ltd and Vicis Capital Master Fund, and (B) 10,004,157 Ordinary Shares, or approximately 5.8% of the Ordinary Shares deemed outstanding, that may be deemed to be beneficially owned pursuant to the terms of a warrant issued by China Hydroelectric Corporation. See Item 6 of this Amendment for a description of the option agreement and warrant.
(2) Based on amounts deemed to be outstanding as reported in Item 5 of this Amendment.


CUSIP No. 16949D101   Page 4 of 9 Pages

 

  1   

Names of reporting persons

 

NewQuest Asia Fund I, L.P.

  2  

Check the appropriate box if a member of a group

(a)  ¨        (b)  x

 

  3  

SEC use only

 

  4  

Source of funds

 

    WC, AF

  5  

Check box if disclosure of legal proceedings is required pursuant to Item 2(d) or 2(e)    ¨

 

  6  

Citizenship or place of organization

 

    Cayman Islands

Number of

shares

beneficially

owned by

each

reporting

person

with

 

     7    

Sole voting power

 

    0

     8   

Shared voting power

 

    52,777,569

     9   

Sole dispositive power

 

    0

   10   

Shared dispositive power

 

    52,777,569

11  

Aggregate amount beneficially owned by each reporting person

 

    97,741,619(1)

12  

Check box if the aggregate amount in Row (11) excludes certain shares    ¨

 

13  

Percent of class represented by amount in Row (11)

 

    56.8%(1) (2)

14  

Type of reporting person

 

    HC, PN

 

(1) Includes (A) 34,959,893 Ordinary Shares, or approximately 20.3% of the Ordinary Shares deemed outstanding, that may be deemed to be beneficially owned pursuant to the terms of an option agreement between CPI Ballpark Investments Ltd and Vicis Capital Master Fund, and (B) 10,004,157 Ordinary Shares, or approximately 5.8% of the Ordinary Shares deemed outstanding, that may be deemed to be beneficially owned pursuant to the terms of a warrant issued by China Hydroelectric Corporation. See Item 6 of this Amendment for a description of the option agreement and warrant.
(2) Based on amounts deemed to be outstanding as reported in Item 5 of this Amendment.


CUSIP No. 16949D101   Page 5 of 9 Pages

 

  1   

Names of reporting persons

 

CPI Ballpark Investments Ltd

  2  

Check the appropriate box if a member of a group

(a)  ¨        (b)  x

 

  3  

SEC use only

 

  4  

Source of funds

 

    AF, WC, OO

  5  

Check box if disclosure of legal proceedings is required pursuant to Item 2(d) or 2(e)    ¨

 

  6  

Citizenship or place of organization

 

    Republic of Mauritius

Number of

shares

beneficially

owned by

each

reporting

person

with

 

     7    

Sole voting power

 

    52,777,569

     8   

Shared voting power

 

    0

     9   

Sole dispositive power

 

    52,777,569

   10   

Shared dispositive power

 

    0

11  

Aggregate amount beneficially owned by each reporting person

 

    97,741,619(1)

12  

Check box if the aggregate amount in Row (11) excludes certain shares    ¨

 

13  

Percent of class represented by amount in Row (11)

 

    56.8%(1) (2)

14  

Type of reporting person

 

    OO

 

(1) Includes (A) 34,959,893 Ordinary Shares, or approximately 20.3% of the Ordinary Shares deemed outstanding, that may be deemed to be beneficially owned pursuant to the terms of an option agreement between CPI Ballpark Investments Ltd and Vicis Capital Master Fund, and (B) 10,004,157 Ordinary Shares, or approximately 5.8% of the Ordinary Shares deemed outstanding, that may be deemed to be beneficially owned pursuant to the terms of a warrant issued by China Hydroelectric Corporation. See Item 6 of this Amendment for a description of the option agreement and warrant.
(2) Based on amounts deemed to be outstanding as reported in Item 5 of this Amendment.


This Amendment No. 1 (this “Amendment”) is filed to amend and supplement the Schedule 13D relating to the ordinary shares, par value $0.001 per share (“Ordinary Shares”) and American Depositary Shares, each representing three Ordinary Shares (“ADSs”), of China Hydroelectric Corporation (the “Company”), filed by the Reporting Persons named therein with the Securities and Exchange Commission (the “SEC”) on December 5, 2012 (the “Schedule 13D”). Except as specifically amended by this Amendment, the Schedule 13D remains in full force and effect. All capitalized terms contained herein but not otherwise defined shall have the meanings ascribed to such terms in the Schedule 13D.

 

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

Item 3 of the Schedule 13D is hereby supplemented as follows:

On July 3, 2013, CPI purchased from Vicis Capital Master Fund (“Vicis”): (i) 3,918,666 Ordinary Shares, (ii) an option (the “Option”) to acquire 34,959,893 Ordinary Shares (the “Option Shares”) from Vicis, and (iii) a warrant (the “Warrant”) to acquire up to 10,004,157 Ordinary Shares from the Company. The amount of funds used by CPI for this transaction was: (i) $3,000,000 to purchase the Ordinary Shares (or approximately $0.77 per Ordinary Share), (ii) $100 to purchase the Option, and (iii) $100 to purchase the Warrant. The source of funds for this transaction was NewQuest’s working capital.

 

Item 4. Purpose of Transaction.

Item 4 of the Schedule 13D is hereby supplemented as follows:

The Reporting Persons reserve the right to change their plans with respect to their investment in the Company at any time, as they deem appropriate, in light of their ongoing evaluation of (a) their business and liquidity objectives, (b) the Company’s financial condition, business, operations, competitive position, prospects and/or the trading price of the ADSs, (c) industry, economic and/or securities markets conditions, (d) alternative investment opportunities, and (e) other relevant factors. Without limiting the generality of the preceding sentence, the Reporting Persons reserve the right to at any time or from time to time (i) purchase or otherwise acquire additional securities (including Ordinary Shares and/or ADSs) of the Company, or instruments convertible into or exercisable for any such securities (collectively, “Company Securities”), in the open market, in privately negotiated transactions, by exercising the Option and the Warrant or otherwise, (ii) sell, transfer or otherwise dispose of Company Securities in public or private transactions, (iii) cause Company Securities to be distributed in kind to its investors, or (iv) encourage (including, without limitation, through communications with directors, management, and existing or prospective security holders, investors or lenders of the Company, existing or potential strategic partners, industry analysts and other investment and financing professionals) the Company to consider or explore (A) sales or acquisitions of assets or businesses or other extraordinary corporate transactions, including transactions in which the Reporting Persons and/or their affiliates may be proposed as acquirors, or (B) other changes to the Company’s business or structure.

If CPI exercises the Option in full, it would beneficially own a majority of the Outstanding Shares. The Reporting Persons have not made any decision as to whether the Option will be exercised, in whole or in part, and reserve all rights with respect to such decision.

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

 

Item 5. Interest in Securities of the Issuer.

Item 5 of the Schedule 13D is hereby amended and restated in its entirety as follows:

(a) CPI may be deemed to beneficially own an aggregate of 97,741,619 Ordinary Shares, or approximately 56.8% of the Ordinary Shares deemed outstanding, which consists of (i) 52,777,569 Ordinary Shares directly beneficially owned by CPI (which include 10,114,506 Ordinary Shares represented by 3,371,502 ADSs and 42,663,063 Ordinary Shares), or approximately 30.7% of the Ordinary Shares deemed outstanding, (ii) 34,959,893 Ordinary Shares, or approximately 20.3% of the Ordinary Shares deemed


outstanding, that CPI may be deemed to beneficially own under Rule 13d-3 pursuant to the terms of the Option Agreement (as defined below), and (iii) 10,004,157 Ordinary Shares, or approximately 5.8% of the Ordinary Shares deemed outstanding, that CPI may be deemed to beneficially own under Rule 13d-3 pursuant to the terms of the Warrant. NewQuest, its sole general partner, NewQuest GP, and NewQuest Management, an investment manager of NewQuest GP, may be deemed to beneficially own all of the Ordinary Shares (including Ordinary Shares represented by ADSs) beneficially owned by CPI. The foregoing calculations of percentage ownership are based on 172,061,324 Ordinary Shares deemed to be outstanding for purposes of this Amendment, which consists of 162,057,167 Ordinary Shares issued and outstanding as represented by the Company in its Annual Report on Form 20-F filed on April 18, 2013, as amended, and an additional 10,004,157 Ordinary Shares that may be issued by the Company to CPI upon exercise of the Warrant in full.

Except as set forth in this Item 5(a), neither the Reporting Persons nor, to the best knowledge of the Reporting Persons, any of the Listed Persons beneficially owns any Ordinary Shares or ADSs.

The Reporting Persons declare that neither the filing of this Statement nor anything herein shall be construed as an admission that such person is, for the purposes of Section 13(d) of the Exchange Act or any other purpose, (i) acting (or has agreed or is agreeing to act together with any other person) as a partnership, limited partnership, syndicate, or other group for the purpose of acquiring, holding or disposing of securities of the Company or otherwise with respect to the Company or any securities of the Company or (ii) a member of any group with respect to the Company or any securities of the Company.

(b) Number of shares as to which each Reporting Person has:

 

  (i) sole power to vote or to direct the vote:

See Item 7 on the cover page(s) hereto.

 

  (ii) shared power to vote or to direct the vote:

See Item 8 on the cover page(s) hereto.

 

  (iii) sole power to dispose or to direct the disposition of:

See Item 9 on the cover page(s) hereto.

 

  (iv) shared power to dispose or to direct the disposition of:

See Item 10 on the cover page(s) hereto.

(c) The information set forth, or incorporated by reference, in Item 3 of this Statement is hereby incorporated by reference.

(d) No other person is known by the Reporting Persons to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, Ordinary Shares that may be deemed to be beneficially owned by the Reporting Persons.

(e) Not applicable.

 

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

Item 6 of the Schedule 13D is hereby supplemented as follows:

As disclosed in Item 3 of this Amendment, CPI has purchased 3,918,666 Ordinary Shares, the Option and the Warrant from Vicis pursuant to an Agreement of Purchase and Sale, dated July 3, 2013 (the “Purchase Agreement”). The terms of the Option are set


forth in an option agreement, dated July 3, 2013 (the “Option Agreement”), by and between Vicis and CPI. Pursuant to the Option Agreement, CPI has the option to purchase the Option Shares, which may be exercised in whole or in part, from Vicis at any time until April 3, 2014. The aggregate exercise price for the Option is (i) $29,133,244.17 if the Option is exercised on or before July 30, 2013 and the closing for such Option exercise occurs on or before August 15, 2013, (ii) $38,455,882.30 if the Option is exercised after July 30, 2013 but on or before January 3, 2014, and (iii) $40,203,876.95 if the Option is exercised after January 3, 2014 but on or before April 3, 2014. Pursuant to the terms of the Warrant, CPI may purchase up to 10,004,157 Ordinary Shares (subject to adjustment pursuant to the Warrant) from the Company for a purchase price of $1.15 per Ordinary Share at any time until December 31, 2013.

The descriptions of the Purchase Agreement, the Option Agreement and the Warrant set forth in this Amendment are not intended to be complete and are qualified in their entirety by reference to the full text of the Purchase Agreement, the Option Agreement and the Warrant, copies of which are attached hereto as Exhibits 99.1, 99.2 and 99.3, respectively, and which are incorporated herein by reference.

The information set forth, or incorporated by reference, in Items 3 through 5 of this Amendment is hereby incorporated by reference in this Item 6.

 

Item 7. Material to be Filed as Exhibits.

The following agreements are filed as exhibits hereto:

 

Exhibit

  

Description of Exhibit

99.1    Agreement of Purchase and Sale, dated July 3, 2013, by and between CPI Ballpark Investments Ltd and Vicis Capital Master Fund (furnished herewith).
99.2    Option Agreement, dated July 3, 2013, by and between CPI Ballpark Investments Ltd and Vicis Capital Master Fund (furnished herewith).
99.3    Amended and Restated Warrant to Purchase Ordinary Shares of China Hydroelectric Corporation, dated August 18, 2011 (incorporated by reference to Exhibit 4.1 to the Form 6-K filed by China Hydroelectric Corporation on August 19, 2011).


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.

 

Date: July 3, 2013     NEWQUEST CAPITAL MANAGEMENT (CAYMAN) LIMITED
    By:  

/s/ Randhirsingh Juddoo

    Name:   Randhirsingh Juddoo
    Title:   Director
    NEWQUEST ASIA FUND I (G.P.) LTD.
    By:  

/s/ Darren Massara

    Name:   Darren Massara
    Title:   Director
    By:  

/s/ Randhirsingh Juddoo

    Name:   Randhirsingh Juddoo
    Title:   Director
    NEWQUEST ASIA FUND I, L.P.
    By: NewQuest Asia Fund I (G.P.) Ltd.
    By:  

/s/ Darren Massara

    Name:   Darren Massara
    Title:   Director
    By:  

/s/ Randhirsingh Juddoo

    Name:   Randhirsingh Juddoo
    Title:   Director
    CPI BALLPARK INVESTMENTS LTD
    By:  

/s/ Subhash C. Lallah

    Name:   Subhash C. Lallah
    Title:   Director
EX-99.1 2 d562713dex991.htm EX-99.1 EX-99.1

Exhibit 99.1

EXECUTION COPY

AGREEMENT OF PURCHASE AND SALE

BY AND BETWEEN

CPI BALLPARK INVESTMENTS LTD,

AS BUYER,

AND

VICIS CAPITAL MASTER FUND,

AS SELLER

DATED AS OF JULY 3, 2013


AGREEMENT OF PURCHASE AND SALE

This Agreement of Purchase and Sale (this “Purchase Agreement”), dated as of July 3, 2013 (the “Signing Date”), is entered into by and between CPI Ballpark Investments Ltd, a company incorporated in the Republic of Mauritius (“Buyer”) and Vicis Capital Master Fund, a sub-trust of Vicis Capital Series Master Trust, a unit trust organized and existing under the laws of the Cayman Islands (the “Seller”). Each of Buyer and Seller is referred to individually herein as a “Party” and collectively, as the “Parties.” Capitalized terms used but not otherwise defined shall have the meanings set forth in Article I.

WITNESSETH:

WHEREAS, the Seller owns, directly or indirectly, 38,878,559 ordinary shares with a nominal value of US$0.001 per share (the “Ordinary Shares”), of China Hydroelectric Corporation (“CHC”), a company incorporated in the Cayman Islands and listed on the New York Stock Exchange;

WHEREAS, the Seller is the holder of that certain Amended and Restated Warrant to Purchase Ordinary Shares of China Hydroelectric Corporation (No. W-4) issued by CHC on August 18, 2011 (the “Warrant”), to purchase up to 10,004,157 Ordinary Shares of CHC (the Warrant and the Ordinary Shares underlying the Warrant, “Warrant Shares”); and

WHEREAS, Buyer desires to purchase from the Seller, and the Seller desires to sell to Buyer, (a) 3,918,666 Ordinary Shares of CHC (the “Sale Shares”), (b) an option (the “Option”) to purchase the remaining 34,959,893 Ordinary Shares of CHC owned by the Seller (together, the “Option Shares”), and (c) the Warrant and the underlying right to purchase up to 10,004,157 Ordinary Shares of CHC (the Sale Shares, the Option Shares and the Warrant Shares together, the “Sale Securities”), upon the terms and subject to the conditions set forth in this Purchase Agreement.

NOW THEREFORE, in consideration of the mutual agreements, covenants, representations, warranties and indemnities contained in this Purchase Agreement, Buyer and the Seller agree as follows:

ARTICLE I

DEFINITIONS

1.1 Certain Defined Terms. For purposes of this Purchase Agreement, the following terms shall have the meanings set forth below:

Affiliate” shall mean, with respect to any entity, any other entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with such entity. For purposes of this definition, “control” (including “controlling”, “controlled by” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract or otherwise. For the Buyer only, “Affiliate” shall include NewQuest Asia Fund I, L.P., and its limited partners, advisory committee, manager, and advisor.


Business Day” shall mean a day other than Saturday or Sunday and on which commercial banks are permitted by applicable Laws to be open for business in New York, Cayman Islands, Mauritius and Hong Kong.

Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

Governmental Authority” shall mean any transnational, domestic or foreign federal, state or local governmental, regulatory (including stock exchanges, insurance and antitrust regulatory bodies), self-regulatory or administrative authority, department, court, commission, arbitral authority, agency, official, or any other governmental body, including any political subdivision thereof, or any judicial or quasi-judicial tribunal of competent jurisdiction thereof.

Law” shall mean, with respect to any Person, any federal, state or local law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, order, injunction, judgment, decree, ruling or other similar requirement enacted, adopted, promulgated or applied by a Governmental Authority that is binding upon or applicable to such Person, as amended unless expressly specified otherwise.

Lien” shall mean any lien, pledge, mortgage, easement, encroachment, security interest, encumbrance, charge, option, restriction on transfer or similar limitation, whether arising by agreement or operation of Law.

Person” shall mean an individual, a partnership (general, limited or limited liability), a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, any other business entity or a governmental, quasi-governmental, judicial or regulatory entity or any department, agency or political subdivision thereof.

Representatives” shall mean, with respect to any Person, the officers, directors, partners, members, employees, advisors, agents and representatives of such Person.

Required Approvals” shall mean all approvals, notices, filings, consents, amendments and waivers which are necessary to complete the Transactions contemplated herein.

Securities Act” shall mean the Securities Act of 1933, as amended.

Transaction Documents” shall mean this Purchase Agreement, the Option Agreement, the Warrant and the certificates, instruments and documents executed in connection herewith and therewith.

Transfer” shall mean, with respect to any Sale Securities, (a) when used as a verb, to sell, assign, dispose of, liquidate, exchange, pledge, encumber, hypothecate or otherwise transfer such Sale Securities or any economic participation or interest therein, whether directly or indirectly, or agree or commit to do any of the foregoing and (b) when used as a noun, a direct or indirect sale, assignment, disposition, liquidation, exchange, pledge, encumbrance, hypothecation or other transfer of such Sale Securities or any participation or interest therein or any agreement or commitment to do any of the foregoing.

 

2


ARTICLE II

PURCHASE AND SALE OF THE SALE SHARES

2.1 Agreement to Purchase and Sell. Subject to the terms and conditions of this Purchase Agreement, at the Closing, the Seller shall (a) Transfer and deliver to Buyer, and Buyer shall purchase and acquire from the Seller, all of the Seller’s right, title and interest in and to the Sale Shares, (b) grant the Option to Buyer pursuant to an agreement in the form attached hereto as Exhibit A (the “Option Agreement”), and (c) Transfer and deliver the Warrant to Buyer.

2.2 Purchase Price. The purchase price for the Sale Shares, the Option and the Warrant shall equal $3,000,200.00, of which $100.00 shall be apportioned to the Option, $100.00 shall be apportioned to the Warrant, and the balance shall be apportioned to the Sale Shares (the “Purchase Price”).

2.3 Closing. The closing of the transaction contemplated by this Purchase Agreement (the “Closing”) shall take place remotely on or before July 5, 2013, or such other date as shall be mutually agreed to by the Parties, but in no event later than July 12, 2013, subject to the satisfaction or waiver of all conditions to the obligations of the Parties to consummate the transactions contemplated hereby (other than conditions with respect to deliveries the respective Parties will make at the Closing itself, but subject to their satisfaction at the Closing) set forth in Article V (the “Closing Date”).

2.4 Payments. Payment of any and all amounts due and owing under this Purchase Agreement shall be denominated in U.S. dollars and shall be made by wire transfer of immediately available funds to the appropriate account designated in advance by the Seller. Within one (1) Business Day after the Signing Date, the Seller shall deliver to Buyer wire instructions for the bank account(s) to which the Purchase Price shall be paid.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE SELLER

The Seller makes the following representations and warranties to Buyer, as of the Signing Date and as of the Closing Date, each and all of which shall survive the execution and delivery of this Purchase Agreement and the Closing hereunder:

3.1 Organization and Authorization. The Seller is an entity duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization. The Seller has the requisite power and authority to enter into, execute and deliver this Purchase Agreement and each of the other Transaction Documents to which it is a party and to perform all of the obligations to be performed by it hereunder and thereunder. This Purchase Agreement has been, and each of the other Transaction Documents to which the Seller is a party will have been at the Closing, duly authorized, executed and delivered by the Seller. This Purchase Agreement constitutes, and each of the other Transaction Documents to which the Seller is a party will constitute at the Closing, the valid and binding obligation of the Seller, enforceable against the Seller in accordance with its respective terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting creditors’ rights generally from time to time in effect).

 

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3.2 No Conflicts. Neither the execution and delivery of this Purchase Agreement nor the other Transaction Documents to which the Seller is a party nor the performance or consummation of the transactions contemplated hereby or thereby by the Seller:

(a) will conflict with, result in the breach of or constitute a default under:

(i) the constituent documents or any other governing instruments of Seller (or constitute an event which, with the passage of time or action by a third party, would result in any of the foregoing);

(ii) any contract, agreement, commitment or instrument to which the Seller is a party or by which the Seller’s assets are bound and which relates to the Sale Securities; or

(iii) any applicable Law, including but not limited to, the Securities Act and the Exchange Act, or any permit or license required by any Governmental Authority to which the Seller or any limited partner of the Seller is subject; or

(b) will require the registration, filing, notice or qualification with or the consent or approval of any Governmental Authority to which the Seller or any limited partner of the Seller is subject, other than filings by the Seller under Section 13 the Exchange Act (provided, that this representation does not purport to address any registration, filing, qualification, consent, approval, permit or license that may be required to be obtained by Buyer, Buyer’s partners or any of Buyer’s subsidiaries in connection with its ownership of the Sale Securities following the Closing).

3.3 Litigation. There is no action, suit, claim, proceeding, arbitration, governmental inquiry or investigation, in each case before or by any Governmental Authority pending or, to the Seller’s knowledge, threatened against (a) the Seller or any of the Seller’s Affiliates, which, if adversely determined, would adversely affect the ability of the Seller to perform or consummate the transactions contemplated by this Purchase Agreement or the other Transaction Documents; or (b) the Seller or any of the Seller’s Affiliates related to any Sale Securities.

3.4 Brokers and Finders. The Seller has not incurred any obligations for any finder’s or broker’s fee or similar fee or commission, in connection with the transactions contemplated by this Purchase Agreement, for which Buyer may be liable.

3.5 Securities Laws Matters. Neither the Seller, nor anyone acting on the Seller’s behalf, has offered to sell the Sale Securities or any portion thereof by means of general solicitation or general advertising.

3.6 Title to Sale Securities. The Seller is the record and beneficial owner of the Sale Securities, free and clear of all Liens. At the Closing, the Seller will deliver good and marketable title to each Sale Share and the Warrant to Buyer, free and clear of all Liens. The assignments, endorsements, powers and other instruments of transfer delivered by the Seller at the Closing will be sufficient to transfer to Buyer the Seller’s entire right, title and interest, legal and beneficial, in the Sale Shares and the Warrant.

 

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3.7 Economic Risk.

(a) The Seller acknowledges that it is aware that Buyer and/or Buyer’s Affiliates may perform, or may already have performed, their own price valuation for the Sale Securities and that Buyer and/or Buyer’s Affiliates have or may have material nonpublic information (which may be either favorable or adverse) concerning the Company or the Sale Securities that has not been disclosed by Buyer to the Seller.

(b) The Seller acknowledges that it has made its own investment analysis and decision to engage in the transactions contemplated by this Purchase Agreement and the other Transaction Documents and has had the opportunity to conduct its own investigation to the extent the Seller has deemed it necessary and desirable and, notwithstanding the foregoing, has determined that it is in the Seller’s best interests to Transfer the Sale Securities to Buyer at this time.

(c) The Seller acknowledges that it has not requested Buyer to disclose any material or potentially material nonpublic information relating to the Company or the Sale Securities, and Buyer has not done so. The Seller further acknowledges that neither Buyer, nor any of Buyer’s Affiliates, nor any of their respective Representatives has delivered any information or made any representation to the Seller, except as expressly set forth herein. The Seller also acknowledges that, save as set out in Article IV, it is not relying upon any disclosure (or non-disclosure) made (or not made) by Buyer, any Affiliate of Buyer, or any of their respective Representatives, in connection with the transactions contemplated by this Purchase Agreement and the other Transaction Documents.

(d) The Seller acknowledges that any material nonpublic information may be indicative of a value of the Sale Securities that is substantially more than the Purchase Price, or may be otherwise adverse to the Seller, and such material nonpublic information, if known to the Seller, could be material to the Seller’s decision to sell the Sale Securities. The Seller agrees that Buyer is not obligated to disclose any material nonpublic information that Buyer may have and the Buyer shall not have any liability with respect to such non-disclosure.

(e) The Seller agrees that it has and will have no claims (under any national, federal or state securities Law or otherwise, to the extent permitted under applicable Law) against Buyer, any Affiliate of Buyer, or any of their respective Representatives in connection with or arising out of any failure of such Person to disclose any material nonpublic information in connection with the transactions contemplated by this Purchase Agreement or the other Transaction Documents. The Seller further agrees not to assert any such claim.

(f) The Seller acknowledges that Buyer is relying on the representations and warranties set forth in this Section 3.7 and would not enter into this Purchase Agreement and the other Transaction Documents or engage in the transactions contemplated hereby and thereby in the absence of such representations and warranties.

 

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ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF BUYER

Buyer makes the following representations and warranties to the Seller, as of the Signing Date and as of the Closing Date, each and all of which shall survive the execution and delivery of this Purchase Agreement and the Closing hereunder:

4.1 Organization and Authorization.

(a) Buyer is an entity duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization. Buyer has the requisite power and authority to enter into, execute and deliver this Purchase Agreement and each of the Transaction Documents to which it is a party and to perform all of the obligations to be performed by it hereunder and thereunder. This Purchase Agreement has been, and each of the other Transaction Documents to which Buyer is a party will have been at Closing, duly authorized, executed and delivered by Buyer. This Purchase Agreement constitutes, and each of the other Transaction Documents to which Buyer is a party will constitute at the Closing, a valid and binding obligation of Buyer, enforceable against Buyer in accordance with its respective terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting creditors’ rights generally from time to time in effect).

4.2 No Conflicts.

(a) Neither the execution and delivery of this Purchase Agreement nor the other Transaction Documents to which Buyer is a party nor the performance or consummation of the transactions contemplated hereby or thereby by Buyer:

(i) will conflict with, result in the breach of or constitute a default under:

(A) the constituent documents or any other governing instruments of Buyer (or constitute an event which, with the passage of time or action by a third party, would result in any of the foregoing);

(B) any contract, agreement, commitment or instrument to which Buyer is a party or by which any of Buyer’s assets are bound; or

(C) any applicable Law, including but not limited to, the Securities Act and the Exchange Act, or any permit or license required by any Governmental Authority to which Buyer or any limited partner of Buyer is subject; or

(ii) will require the registration, filing, notice or qualification with or the consent or approval of any Governmental Authority to which Buyer or any limited partner of Buyer is subject, other than filings by the Buyer under Section 13 the Exchange Act (provided, that this representation does not purport to address any registration, filing, qualification, consent, approval, permit or license that may be required to be obtained by the Seller, the Seller’s partners or any of their Affiliates in connection with the Transfer of the Sale Securities at Closing).

 

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4.3 Litigation. There is no action, suit, claim, proceeding, arbitration, governmental inquiry or investigation, in each case before or by any Governmental Authority, pending or, to Buyer’s knowledge, threatened against Buyer, which, if adversely determined, would adversely affect the ability of Buyer to perform or consummate the transactions contemplated by this Purchase Agreement or the other Transaction Documents, including the payment of the Purchase Price.

ARTICLE V

CONDITIONS TO OBLIGATIONS OF BUYER

The obligations of Buyer to consummate the transactions contemplated by this Purchase Agreement at the Closing are subject to the satisfaction or waiver of each of the following conditions:

5.1 Representations and Warranties. The representations and warranties of the Seller contained in this Purchase Agreement shall be true and correct as of the Signing Date and as of the Closing Date.

5.2 Performance. The Seller shall have performed or complied in all material respects with all agreements, covenants and obligations to be performed or complied with by the Seller at or prior to the Closing.

5.3 Legal Proceedings.

(a) No applicable Law shall prohibit the consummation of the transactions contemplated hereby.

(b) There shall not have been instituted or pending any action or proceeding by any Person or Governmental Authority challenging or seeking to make illegal or to restrain or prohibit the consummation of the transactions contemplated by this Purchase Agreement or the other Transaction Documents.

5.4 Documentation. The Seller shall execute and deliver to Buyer all documents or instruments reasonably requested or required by Buyer in connection with the consummation of the transactions contemplated hereby, including without limitation (i) any Required Approvals, (ii) a duly executed instrument of transfer transferring the Sale Shares to Buyer, (iii) the Option Agreement, duly executed by the Seller, (iv) a duly executed instrument transferring the Warrant to Buyer and any other documentation required by CHC to effect such transfer (each of which shall be satisfactory to Buyer), and (v) such other assignment documents or irrevocable instructions as may be necessary to Transfer all of the Seller’s right, title and interest in and to the Sale Shares and the Warrant to Buyer.

ARTICLE VI

ADDITIONAL COVENANTS

6.1 Closing; Further Assurances. Prior to the Closing, each Party will take all actions necessary in order for the Closing to take place on the date contemplated by this Purchase Agreement. From time to time after the Closing, as and when requested by any Party hereto and at such requesting Party’s expense, the other Party shall execute and deliver, or cause to be executed and delivered, all such documents and instruments and shall take, or cause to be taken, all such further or other actions as such requesting Party may reasonably deem necessary or desirable to evidence and effectuate the transactions contemplated by this Purchase Agreement.

 

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ARTICLE VII

TERMINATION

7.1 Termination. This Purchase Agreement may be terminated and the transactions contemplated by it abandoned at any time prior to the Closing:

(a) by mutual written agreement by Buyer and the Seller;

(b) by the non-breaching Party, if there is a breach of any representation or warranty or failure to perform any covenant or agreement set forth in this Purchase Agreement on the part of the breaching Party that would cause the Closing not to occur.

7.2 Effect of Termination. In the event of termination of this Purchase Agreement, the provisions of this Purchase Agreement shall immediately become void and of no further force and effect (other than the provisions of Section 1.1 (Certain Defined Terms), this Section 7.2 (Effect of Termination)) and Article VIII (Miscellaneous), each of which shall survive the termination of this Purchase Agreement), and there shall be no liability on the part of any Party, or any of their respective Affiliates or Representatives, save that in the case of any breach by a Party of its covenants or agreements in this Purchase Agreement or any breach of its representations or warranties contained in Article III or Article IV of this Purchase Agreement at or prior to the time of such termination, which in each case cause the Closing to not occur, the breaching Party shall reimburse the non-breaching Party for its reasonable transaction expenses.

ARTICLE VIII

MISCELLANEOUS

8.1 Expenses. All fees and expenses incurred in connection with this Purchase Agreement and the other Transaction Documents (and the transactions contemplated hereunder and thereunder), including all fees of counsel, accountants, finders and brokers, shall be borne by the Party incurring the same. For the avoidance of doubt, it is agreed that all charges, commissions, fees and expenses incurred for holding any Sale Securities prior to the transfer thereof pursuant to this Agreement will continue to be incurred and settled by the Seller.

8.2 Notices. All notices, requests, demands and other communications required or permitted under this Purchase Agreement shall be in writing and shall be deemed to have been duly given and received when delivered by hand or courier, when received by facsimile transmission, electronic mail or other electronic transmission, or three Business Days after the date when posted by air mail, with postage prepaid, addressed as follows:

 

  (i) If to the Seller, to:

445 Park Avenue, Suite 1901

New York, NY 10022

Attn: Shad Stastney

Email: sstastney@viciscapital.com

 

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or to such other person or address as the Seller shall furnish to Buyer in writing.

 

  (ii) If to Buyer, to:

c/o DTOS Ltd

10th Floor, Raffles Tower

19 Cybercity, Ebene, Mauritius

Attn: Audrey Lam

Email: alam@dtos-mu.com

with a copy to:

26/fl, 8 Wyndham Street,

Central

Hong Kong

Attn: General Counsel

Fax: +852 2185 7300

Email: lc.lee@nqcap.com

or to such other person or address as Buyer shall furnish to the Seller in writing.

8.3 Assignment. This Purchase Agreement and all of its provisions shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. This Purchase Agreement may not be assigned by any Party without the prior written consent of the other Party hereto and any purported assignment in violation of this sentence shall be void.

8.4 Governing Law. This Purchase Agreement and the legal relations among the Parties shall be governed by and construed in accordance with the laws of the State of New York without giving effect to the principles of conflicts of law thereof (other than the New York General Obligations Law 5-1401).

8.5 Counterparts. This Purchase Agreement may be executed in multiple counterparts (including by means of facsimile or portable document format (“.pdf”) signature pages), any one of which need not contain the signatures of more than one Party, but all such counterparts taken together shall constitute one and the same instrument.

8.6 Specific Performance. Each of the Parties to this Purchase Agreement acknowledges and agrees that irreparable damage would occur in the event that any of the provisions of this Purchase Agreement were not performed by such Party in accordance with their specific terms or were otherwise breached by such Party, that the other Party to this Purchase Agreement will have no adequate remedy at law and that monetary damages may not be a sufficient remedy for any such failure or breach. Accordingly, each Party hereto shall be entitled, in addition to any other rights such Party may have (whether at law, in equity or by contract), to specific performance of the terms of this Purchase Agreement, including, without limitation, an injunction or injunctions to specifically enforce the terms and provisions hereof in any court of competent jurisdiction described in Section 8.7, without the necessity of posting any bond or other security and without the necessity of establishing that monetary damages would not be an adequate remedy.

 

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8.7 Consent to Jurisdiction. Any and all legal actions and proceedings by a Party hereto concerning, relating to, or arising out of this Purchase Agreement or any of the other Transaction Documents or its enforcement shall be submitted to the exclusive jurisdiction of the United States federal courts sitting in the Southern District of New York or any New York State court sitting in the County of New York. Each of the Parties hereto hereby consents and submits to the jurisdiction of the aforesaid courts and waives and agrees not to plead or claim, in any legal action or proceeding with respect to this Purchase Agreement or any of the other Transaction Documents or its enforcement brought in any of the aforesaid courts, that any such court lacks jurisdiction over such Party, that venue before any such court is improper, that any such court is an inconvenient forum, or that such legal action or proceeding should be transferred from any such court for any other reason.

8.8 WAIVER OF TRIAL BY JURY. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS PURCHASE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

8.9 Interpretation. The headings of the sections and subsections of this Purchase Agreement are inserted for convenience only and shall not constitute a part of or affect in any way the meaning or interpretation of this Purchase Agreement. When a reference is made in this Purchase Agreement to sections, subsections, clauses, schedules or Exhibits, such reference shall be to a section, subsection, clause, schedule or Exhibit to this Purchase Agreement unless otherwise indicated. The words “include,” “includes” and “including” when used in this Purchase Agreement shall be deemed in each case to be followed by the words “without limitation.” Unless otherwise specified, any reference to “knowledge” herein shall mean actual knowledge without any duty of inquiry or investigation. Defined terms used in this Purchase Agreement shall have the same meaning whether defined or used herein in the singular or the plural, as the case may be.

8.10 Entire Agreement. This Purchase Agreement, including the schedules and Exhibits hereto, and the other Transaction Documents, together with the other agreements, documents and certificates delivered pursuant to the terms of this Purchase Agreement and the other Transaction Documents contain the complete agreement among the Parties hereto and supersede any prior understandings, agreements and representations by or among the Parties, whether written or oral, which may have related to the subject matter hereof in any way.

8.11 Amendment; Waiver. This Purchase Agreement may be amended only by a written instrument executed by the Seller and Buyer. Any failure of Buyer to comply with any obligation, agreement or condition under this Purchase Agreement may only be waived in writing by the Seller, and any such failure by the Seller may only be waived in writing by Buyer, but any such waiver shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure. No waiver of any provision hereunder or any breach or default thereof shall extend to or affect in any way any other provision or prior or subsequent breach or default, and no failure or delay to enforce, or partial enforcement of, any provision hereof shall operate as a waiver of such provision or of any other provision.

8.12 Third Parties. Except as specifically set forth or referred to in this Purchase Agreement, nothing in this Purchase Agreement, expressed or implied, is intended, or shall be construed, to confer upon or give to any person or entity other than the Parties and their successors or permitted assigns, any rights or remedies under or by reason of this Purchase Agreement.

 

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8.13 Publicity. Except as may otherwise be required by applicable Law (including, without limitation, Section 13 the Exchange Act), no public statement (including by electronic mail transmission), press release or similar publicity release concerning this Purchase Agreement, the other Transaction Documents or the transactions contemplated hereby and thereby shall be made by the Seller without the prior written consent of Buyer or by Buyer without the prior written consent of the Seller.

8.14 Resolution of Conflicts. The Parties hereto agree and acknowledge that to the extent any terms and provisions of this Purchase Agreement are in any way inconsistent with or in conflict with any term, condition or provision of any other Transaction Document, or any other agreement, document or instrument contemplated hereby, this Purchase Agreement shall govern and prevail.

8.15 No Presumption Regarding Drafting. Each Party hereto acknowledges that it has reviewed this Purchase Agreement prior to its execution and that changes were made to this Purchase Agreement based upon its comments. If any disputes arise with respect to the interpretation of any provision of this Purchase Agreement, the provision shall be deemed to have been drafted by all of the Parties and shall not be construed against any Party on the basis that the Party was responsible for drafting that provision.

8.16 Severability. If any term, provision, agreement, covenant or restriction of this Purchase Agreement is held by a court of competent jurisdiction or other Governmental Authority to be invalid, void, or unenforceable, the remainder of the terms, provisions, agreements, covenants and restrictions of this Purchase Agreement shall remain in full force and effect and shall in no way be affected, impaired, or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party hereto. Upon such a determination, the Parties shall negotiate in good faith to modify this Purchase Agreement so as to effect the original intent of the Parties as closely as possible in a reasonably acceptable manner in order that the transactions contemplated hereby may be consummated as originally contemplated to the fullest extent possible.

8.17 Miscellaneous. For purposes of this Purchase Agreement, a document (or signature page thereto) signed and transmitted by facsimile, telecopier, electronic mail or electronically transmitted “.pdf” format is to be treated as an original document. The signature of any Party on such document, for purposes hereof, is to be considered as an original signature, and the document transmitted is to be considered to have the same binding effect as an original signature on an original document. At the request of any Party, any facsimile, telecopy or electronically mailed document shall be re-executed in original form by the Parties who executed the facsimile, telecopy or electronically mailed document. No Party may raise the use of a facsimile, telecopier, electronic mail or electronically transmitted “.pdf” format, or the fact that any signature was transmitted through the use of a facsimile, telecopier, electronic mail or electronically transmitted “.pdf” format as a defense to the enforcement of this Purchase Agreement or any amendment or other document executed and delivered pursuant to this Purchase Agreement and each Party hereby forever waives any such defense.

[Remainder of Page Intentionally Left Blank]

 

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IN WITNESS WHEREOF, the Parties have executed this Purchase Agreement, acting by their duly authorized agents, as of the date first above written.

 

CPI BALLPARK INVESTMENTS LTD
By:  

/s/ Subhash C. Lallah

Name:   Subhash C. Lallah
Title:   Director

 

[SIGNATURE PAGE TO PURCHASE AND SALE AGREEMENT]


IN WITNESS WHEREOF, the Parties have executed this Purchase Agreement, acting by their duly authorized agents, as of the date first above written.

 

VICIS CAPITAL MASTER FUND
By:   Vicis Capital, LLC
By:  

/s/ Shadron Stastney

Name:   Shadron Stastney
Title:   Manager

 

[SIGNATURE PAGE TO PURCHASE AND SALE AGREEMENT]

EX-99.2 3 d562713dex992.htm EX-99.2 EX-99.2

Exhibit 99.2

EXECUTION COPY

OPTION AGREEMENT

This OPTION AGREEMENT (this “Agreement”), dated July 3, 2013 (the “Effective Date”), is by and between VICIS CAPITAL MASTER FUND, a sub-trust of Vicis Capital Series Master Trust, a unit trust organized and existing under the laws of the Cayman Islands (“Vicis”), with a mailing address care of Vicis Capital, LLC, 445 Park Avenue, Suite 1901, New York, New York 10022, and CPI BALLPARK INVESTMENTS LTD, a company incorporated in the Republic of Mauritius (the “Optionee”), with a mailing address care of DTOS Ltd, 10th Floor, Raffles Tower, 19 Cybercity, Ebene, Mauritius.

BACKGROUND INFORMATION

On even date herewith, Vicis and the Optionee have entered into that certain Agreement of Purchase and Sale (the “Purchase Agreement”). This Agreement is being issued pursuant to the Purchase Agreement, and any capitalized terms used but not defined herein shall have the meanings given to such terms in the Purchase Agreement. The parties, in consideration of the covenants contained in the Purchase Agreement and this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, agree as follows:

OPERATIVE PROVISIONS

1. Definition of Securities. The term “Option Shares” as used in this Agreement shall mean 34,959,893 ordinary shares (“Ordinary Shares”) of China Hydroelectric Corporation (“CHC”), together with, in each case, all securities issued in substitution of or exchange for, or on account of, any such Ordinary Shares, including, but not limited to, securities issued upon a conversion, stock dividend, stock split, reverse stock split, recapitalization, reclassification, merger, consolidation, combination of shares, spinoff or otherwise.

2. Grant of Option. Vicis hereby grants to the Optionee an option (the “Option”) to purchase the Option Shares from Vicis. The Option to acquire the Option Shares shall become immediately exercisable upon the execution of this Agreement. The Option may be exercised at any time prior to the Termination Date (as defined below) in whole or in part at the sole discretion of the Optionee.

3. Option Purchase Price. The purchase price for this Option is one hundred dollars ($100.00), and other good and valuable consideration, including consideration paid pursuant to the Purchase Agreement, the receipt and sufficiency of which are hereby acknowledged.

4. Purchase Price Upon Exercise of Option. Upon exercise of the Option, the purchase price payable for the Option Shares (the “Purchase Price”) shall be as follows:

(a) If the Option is exercised on or before July 30, 2013 and the closing for only this Option exercise occurs on or before August 15, 2013, the aggregate exercise price for all the Option Shares will be $29,133,244.17;

(b) If the Option is exercised after July 30, 2013 but on or before January 3, 2014, the aggregate exercise price for all the Option Shares will be $38,455,882.30; or

(c) If the Option is exercised after January 3, 2014 but on or before the Termination Date (as defined below), the aggregate exercise price for all the Option Shares will be $40,203,876.95.


5. Exercise Procedure; Closing; Payment of Purchase Price. The Optionee may exercise the Option in whole or part by delivering written notice to Vicis, at any time prior to the Termination Date, of the Optionee’s intent to exercise all or any portion of the Option (each, an “Exercise Notice”). The Optionee shall specify in each Exercise Notice the portion of the Option Shares that it wishes to purchase at such time. The closing of each sale and purchase of Option Shares (an “Option Closing”) shall take place at a time and date mutually agreeable to Vicis and the Optionee, which shall be no later than fifteen (15) Business Days after the date that an Exercise Notice is given to Vicis, it being understood that there shall be no price adjustment or Termination Date (as defined below) during such fifteen (15) Business Day period, provided that, during the first exercise period, the Option Closing shall occur on or before August 15, 2013. The pro rata portion of the Purchase Price applicable to the Option Shares being purchased at an Option Closing is payable, in cash, in full, at such Option Closing. Each Option Closing shall occur at the offices of legal counsel for Vicis, or at such other location (which may include the waiver of any physical closing and the exchange of executed documentation by facsimile or electronic transmission or otherwise), as may be agreed to by Vicis and the Optionee. If the parties do not mutually agree to a time and date for an Option Closing, the Option Closing shall occur at 10:00 a.m., Eastern Prevailing Time, on the fifteenth (15th) Business Day after the date that the applicable Exercise Notice is given to Vicis. At each Option Closing, (a) Vicis and the Optionee shall execute an agreement of purchase and sale in substantially similar form to the Purchase Agreement, provided, however, such agreement shall provide for the purchase of the applicable Option Shares for the pro rata portion of the Purchase Price as contemplated by this Agreement, (b) Vicis shall deliver to the Optionee the certificates or instruments evidencing the applicable Option Shares in negotiable form or accompanied by an executed stock power or instrument of transfer in a form acceptable to the Optionee or other evidence reasonably acceptable to the Optionee of the transfer of the applicable Option Shares to the Optionee, and (c) the Optionee shall deliver to Vicis payment of the applicable portion of the Purchase Price.

6. Term; Termination. The term of the Option shall be for a period that commences on the Effective Date and expires at 11:59 p.m., Eastern Prevailing Time, on April 3, 2014, unless sooner terminated by mutual written agreement of Vicis and the Optionee (the “Termination Date”). The Option is not intended to be an “incentive stock option” within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended.

7. Representations and Warranties of Vicis. In order to induce the Optionee to enter into this Agreement and to consummate the transactions contemplated hereby, Vicis represents and warrants to the Optionee that:

(a) Authorization. Vicis has duly executed and delivered this Agreement. When executed and delivered by Vicis, this Agreement will constitute the valid and binding obligation of Vicis, enforceable in accordance with its terms except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws generally affecting the rights of creditors and subject to general equity principles.

(b) Consent. No consent, approval or authorization of or registration, qualification, designation, declaration or filing with any governmental authority or private person or entity on the part of Vicis is required in connection with the execution and delivery of this Agreement or the consummation of any other transaction contemplated hereby (other than filings required under Section 13 of the Securities Exchange Act of 1934, as amended).

 

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(c) No Contractual Violation. Neither the execution, delivery nor performance of this Agreement by Vicis, including the consummation by Vicis of the transactions contemplated hereby, will constitute a violation of or a default under, or conflict with, any term or provision of any contract, commitment, indenture or other agreement, or of any other private restriction of any kind, to which Vicis is a party or by which it is otherwise bound.

(d) Title to Option Shares. Vicis has, and at all times this Option remains outstanding shall have, good and marketable title to the Option Shares free and clear of all liens, claims, encumbrances and restrictions, legal or equitable, of every kind, except for certain restrictions on transfer imposed by federal and state securities laws. Vicis has, and at all times this Option remains outstanding shall have, full and unrestricted legal right, power and authority to sell, assign and transfer the Option Shares to the Optionee without obtaining the consent or approval of any other person or governmental authority. Vicis has, and at all times this Option remains outstanding shall have, the power to vote all of the Option Shares and no proxies have been given in respect of any or all of the Option Shares.

8. Representations and Warranties of the Optionee. The Optionee represents and warrants to Vicis that:

(a) Authorization. The Optionee has duly executed and delivered this Agreement. When executed and delivered by the Optionee, this Agreement will constitute the valid and binding obligation of the Optionee, enforceable in accordance with its terms, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws generally affecting the rights of creditors and subject to general equity principles.

(b) Consent. No consent, approval or authorization of or registration, qualification, designation, declaration or filing with any governmental authority or private person or entity on the part of the Optionee is required in connection with the execution and delivery of this Agreement or the consummation of any other transaction contemplated hereby (other than filings required under Section 13 of the Securities Exchange Act of 1934, as amended), except as shall have been duly taken or effected prior to the Option Closing.

(c) No Contractual Violation. Neither the execution, delivery nor performance of this Agreement by the Optionee, including the consummation by the Optionee of the transactions contemplated hereby, will constitute a violation of or a default under, or conflict with, any term or provision of any contract, commitment, indenture or other agreement, or of any other private restriction of any kind, to which the Optionee is a party or by which it is otherwise bound.

9. Covenants of Vicis. Vicis covenants that, as long as this Option remains outstanding, Vicis shall not, directly or indirectly, (i) sell, convey, transfer, exchange or otherwise dispose of any of the Option Shares or any interest therein, (ii) enter into any contract, option or other arrangement or understanding with respect thereto (including any voting trust or agreement or the granting of any proxy), (iii) convert any Ordinary Shares into ADSs, or (iv) create, incur, or permit to exist any pledge, mortgage, lien, charge, encumbrance or any security interest whatsoever with respect to any of the Option Shares or the products and proceeds thereof. Upon request of the Optionee and subject to this Agreement, Vicis shall place a legend on the back of any certificates for the Option Shares referencing this Option, such legend being in form and substance reasonably acceptable to the Optionee.

 

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10. No Rights as a Shareholder. Nothing in this Agreement shall convey upon the Optionee any rights of a shareholder of the Company prior to an exercise of the Option and the transfer of the applicable Option Shares pursuant to the terms and conditions set forth herein.

11. Investment Purpose. This Agreement is executed on the express condition that the purchase of the Option Shares shall be made for investment purposes only and not with a view to their resale or further distribution unless (a) such Option Shares, at the time of their issuance and delivery, are registered under the Securities Act of 1933, as amended (the “Act”), or (b) after the date of such issuance the resale of such Option Shares is determined by counsel for the Company to be exempt from the registration requirements of the Act and of any other applicable law, regulation or ruling.

12. Assignability. Each of the provisions and agreements herein contained shall be binding upon and inure to the benefit of the respective parties hereto, as well as their successors and transferees, as applicable, but no statement contained herein is intended to confer upon any person or entity, other than the parties hereto and their successors in interest and permitted assignees, any rights or remedies under or by reason of this Agreement. The Optionee may assign this Agreement at any time prior to the Termination Date upon prior written notice to Vicis.

13. Miscellaneous Provisions. All notices required to be given pursuant to this Agreement shall be in writing and shall be hand delivered or sent via overnight delivery services to the applicable address set forth in the preamble of this Agreement, or to such other address as any such party may have designated by like notice forwarded to the other party hereto. This Agreement, and any other document referenced herein, constitute the entire understanding of the parties hereto with respect to the subject matter hereof, and no amendment, modification or alteration of the terms hereof shall be binding unless the same be in writing, dated subsequent to the date hereof and duly approved and executed by each of the parties hereto. Vicis hereby covenants and agrees with the Optionee that at any time and from time to time it will promptly execute and deliver to the Optionee such further assurances, instruments and documents and take such further action as the Optionee may reasonably request in order to carry out the full intent and purpose of this Agreement. This Agreement, and the application or interpretation thereof, shall be governed exclusively by its terms and by the laws of the State of New York. Any and all legal actions and proceedings by a party hereto concerning, relating to, or arising out of this Agreement or its enforcement shall be submitted to the exclusive jurisdiction of the United States federal courts sitting in the Southern District of New York or any New York State court sitting in the County of New York. The parties agree that, irrespective of any wording that might be construed to be in conflict with this paragraph, this Agreement is one for performance in New York. The parties to this Agreement agree that they waive any objection, constitutional, statutory or otherwise, to such court’s taking jurisdiction of any dispute between them. By entering into this Agreement, the parties, and each of them understand that they might be called upon to answer a claim asserted in a New York court. If a legal action is initiated by any party to this Agreement against another, arising out of or relating to the alleged performance or non-performance of any right or obligation established hereunder, or any dispute concerning the same, any and all fees, costs and expenses reasonably incurred by each successful party or its legal counsel in investigating, preparing for, prosecuting, defending against, or providing

 

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evidence, producing documents or taking any other action in respect of, such action shall be the joint and several obligation of and shall be paid or reimbursed by the unsuccessful party or parties. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY IN ANY SUCH LEGAL PROCEEDING. All representations and warranties contained in this Agreement shall survive the closing and the consummation of the transactions contemplated hereby. This Agreement may be executed in any one or more counterparts, all of which shall be considered one and the same agreement. The headings in this Agreement are inserted for convenience only and shall not constitute a part of this Agreement.

[Signature page follows.]

 

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IN WITNESS WHEREOF, this Agreement has been executed as of the date first above written.

 

VICIS:
VICIS CAPITAL MASTER FUND
By:   Vicis Capital, LLC
By:  

/s/ Shadron Stastney

  Name:   Shadron Stastney
  Title:   Manager
OPTIONEE:
CPI Ballpark Investments Ltd
By:  

/s/ Subhash C. Lallah

  Name:   Subhash C. Lallah
  Title:   Director

 

[SIGNATURE PAGE TO OPTION AGREEMENT]